author: THOMPSON, Presiding Judge.

text:
    Robin HENDON v. Sharon HOLLOWAY and Jerry Lagrone
    2150958
    Court of Civil Appeals of Alabama.
    February 17, 2017 Rehearing Denied May 19, 2017 Certiorari Denied July 7, 2017
    Alabama Supreme Court 1160777
    H. Stanton "Bill" Burns III of Burns Legal & Political Affairs, Oneonta, for appellant.
    Roger C. Appell, Birmingham, for appellees.
   THOMPSON, Presiding Judge.

Robin Hendon appeals from a summary judgment entered in favor of Sharon Holloway and Jerry Lagrone, the named defendants in a civil action Hendon filed in the Jefferson Circuit Court ("the trial court").

The record demonstrates that on August 11, 2015, Hendon filed a verified complaint against Holloway and Lagrone alleging claims of malicious prosecution and harassment. Hendon claims that Holloway initiated a criminal matter against her without probable cause and in bad faith. In the complaint, Hendon claimed that, in the criminal matter, Holloway had asserted that Hendon had harassed her "by shooting fireworks at [Holloway's] pets." After a trial in the Jefferson District Court, Hendon was found not guilty in the criminal matter.

In her complaint, Hendon further alleged that "respondent" had harassed her and listed the following alleged acts of harassment: "respondent" had stolen Hendon's mail, had knocked over trash cans in Hendon's yard, had slashed the cover on Hendon's boat and had stolen the boat from her "slew," had broken or stolen Hendon's outdoor decorative solar lights, had made prank telephone calls to Hendon, had allowed a tree to fall on Hendon's lot and had failed to make "any attempt to clean up the refuse" from the fallen tree, and, finally, had called Hendon's husband's workplace to complain about where he parked his company vehicle.

On June 20, 2016, Holloway filed two identical "motion[s] for a partial summary judgment." One of the motions included an affidavit from Lagrone. The other motion for a partial summary judgment included Holloway's affidavit. In their affidavits, both Lagrone and Holloway denied each act of harassment of which Hendon had accused them. Lagrone also denied initiating the criminal complaint against Hendon that served as the basis of the malicious-prosecution claim. Nothing in Holloway's affidavit addresses Hendon's malicious-prosecution claim. The motions themselves also did not address the malicious-prosecution claim.

In Hendon's response to the motions, she stated that the affidavits fell "woefully short of the requirements for Summary Judgment." She also attempted to refute Lagrone's and Holloway's assertions that they had not engaged in the conduct of which they were accused. For example the response stated:

"On the topic of knocking over trash cans, [Hendon's] response again indicates that she was not able to personally witness the act because of the Defendants' clandestine acts done under the cover of night at late hours, but that she can show motive and opportunity, as well as the circumstantial evidence that it had never occurred before the Defendants lived adjacent to her."

(Emphasis in the original.) Hendon did not offer an evidentiary submission with her response to refute the evidence presented in Holloway's and Lagrone's affidavits.

On July 13, 2016, the trial court entered a summary judgment in favor of both Holloway and Lagrone on Hendon's claims. The judgment states:

"Pending are the defendants' motions for summary judgment. The motions are accompanied by affidavits from the defendants, in which they deny under oath having committed any of the misdeeds about which [Hendon] complains.
"[Hendon] has filed a response to these motions. The response consists of arguments from [Hendon's] counsel. [Hendon], however, presents no evidence to support the contentions of her complaint. This shortcoming is fatal especially since [Hendon] bears the burden of proving her allegations.
"The court must conclude, from the evidence before it, that the material facts stand undisputed. Based on those facts, the defendants are entitled to judgment as a matter of law.
"SUMMARY JUDGMENT is therefore entered in favor of both defendants on the claims of [Hendon], who shall have and recover nothing. This is the final order in this action, with costs taxed as paid."

(Emphasis in the original.)

Hendon timely filed a motion to alter, amend, or vacate the summary judgment in which she pointed out, among other things, that the "defendants'" motions requested only a partial summary judgment and did not address the claim of malicious prosecution. The trial court denied the postjudgment motion, and Hendon then appealed to this court.

On appeal, Hendon argues that, because Lagrone did not file a motion for a summary judgment, the trial court erred in entering the summary judgment in his favor. The record indicates that, at the trial-court level, the parties and the trial court treated the two motions for a partial summary judgment, which purport to be motions "for Defendant Sharon Holloway," as though they had been filed by both defendants, Holloway and Lagrone. On June 27, 2016, the trial court entered an order stating that, "[p]ending are summary judgment motions filed by the defendants." That order granted Hendon leave to file her response by a certain date, at which time the matter would be taken under submission. On July 8, 2016, Hendon, through her attorney, filed her response, in which she referred to the "Defendants' Motion for Summary Judgment." Throughout the response, Hendon refers to the "defendants'" motion, the "defendants'" actions, and the "defendants'" duty of care. Not once in her response did Hendon mention that Lagrone had not filed a separate motion for a partial summary judgment.

After the trial court entered the summary judgment in favor of both Holloway and Lagrone, Hendon filed a motion to alter, amend, or vacate the judgment pursuant to Rule 59, Ala. R. Civ. P. In her postjudgment motion, Hendon argued that the "defendants' motion" requested only a partial summary judgment and addressed only the claim of harassment. She did not assert that the summary judgment was improper as to Lagrone because he had not filed a motion for a summary judgment.

As demonstrated, the parties and the trial court proceeded as though the motions for a partial summary judgment had been filed by both Holloway and Lagrone. Because Hendon never asserted before the trial court that the summary judgment was improper as to Lagrone because he had not filed a summary-judgment motion, this court cannot consider the issue on appeal. Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala. 1992) (holding that an appellate court's review is restricted to the evidence and arguments presented to the trial court and that, thus, an appellate court cannot consider an issue raised for the first time on appeal); see also Sutchaleo v. Sutchaleo, 228 So.3d 475 (Ala. Civ. App. 2017) (same). Accordingly, we will not reverse the summary judgment entered in favor of Lagrone as to this issue.

Hendon also argues that the trial court erred in entering a summary judgment in favor of Holloway and Lagrone on both the malicious-prosecution claim and the harassment claim. We review a summary judgment pursuant to the following standard:

"This Court's review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala. 2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala. 2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala. 1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce 'substantial evidence' as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala. 1989) ; Ala. Code 1975, § 12-21-12."

Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala. 2004).

Hendon argues that, because Holloway and Lagrone moved only for a partial summary judgment, the trial court erred in entering the summary judgment as to both of her claims. Specifically, Hendon points out that nothing in the motions or in Holloway's affidavit addresses the malicious-prosecution claim. Therefore, Hendon says, Holloway did not meet her burden of showing that she was entitled to a judgment as a matter of law on the malicious-prosecution claim.

"The elements of malicious prosecution include:
" '(1) that the present defendant instituted a prior judicial proceeding against the present plaintiff; (2) that in instituting the prior proceeding the present defendant acted without probable cause and with malice; (3) that the prior proceeding ended in favor of the present plaintiff; and (4) that the present plaintiff was damaged as a result of the prior proceeding.'
" Wal-Mart Stores, Inc. v. Goodman, 789 So.2d 166, 174 (Ala. 2000) (citing Delchamps, Inc. v. Bryant, 738 So.2d 824, 831-32 (Ala. 1999) )."

Consolidated Elec. Contractors & Engineers, Inc. v. Center Stage/Country Crossing Project, LLC, 175 So.3d 642, 651 (Ala. Civ. App. 2015).

As mentioned, Hendon alleged in her complaint that Holloway had initiated a criminal proceeding against her in bad faith and without probable cause. That prior proceeding ended with a verdict and judgment in favor of Hendon. Hendon also asserted that she had suffered extreme duress and mental anguish as a result of the criminal proceeding against her. There is no question that Hendon clearly set forth a claim of malicious prosecution in her complaint. A review of Holloway's motion for a partial summary judgment and Holloway's affidavit submitted with that motion reveals no evidence that could be construed as a refutation of Hendon's malicious-prosecution claim. Thus, Holloway failed to meet her burden of demonstrating that no genuine issue of material fact existed or that she was entitled to a judgment as a matter of law on the malicious-prosecution claim, as required by Rule 56, Ala. R. Civ. P. See Dow, 897 So.2d at 1038-39. Accordingly, we conclude that the trial court erred in entering a summary judgment in favor of Holloway as to Hendon's claim of malicious prosecution against her.

Hendon also argues that the trial court erred in entering the summary judgment in favor of Holloway and Lagrone as to her claim of harassment. Specifically, Hendon contends that Holloway and Lagrone failed to demonstrate that no genuine issue of material fact existed as to that claim or that they were entitled to a judgment as a matter of law on that claim. Thus, she says, the trial court's summary judgment as to the harassment claim was improper. The record does not support her argument, however.

Both Holloway and Lagrone submitted affidavits in support of the motions for a partial summary judgment in which they specifically denied having committed any or all of the harassing conduct of which Hendon accused them. As the trial court pointed out in its judgment, Hendon failed to present any evidence to support the contentions she made in her complaint or to refute Holloway's and Lagrone's evidence, included in their respective affidavits, indicating that they did not commit the acts of which they were accused. Once Holloway and Lagrone made their prima facie showings that they had not engaged in harassment against Hendon, the burden shifted to Hendon to present substantial evidence as to the existence of a genuine issue of material fact. See Dow, 897 So.2d at 1038-39. Hendon failed to present such evidence. Accordingly, the summary judgment was properly entered in favor of Holloway and Lagrone as to the harassment claim.

Hendon also argues that the trial court erred in entering the summary judgment without giving her the opportunity to be heard orally. As mentioned, when the motions for a partial summary judgment were filed, the trial court entered an order providing Hendon with leave to file her response by a certain date, "at which time," the court said, "the matter [would] be taken under submission." Hendon did not seek a hearing in her response to the motions for a partial summary judgment, and our review of the record demonstrates that she did not seek a hearing on the motions in a separate document. An appellate court will not reverse a judgment based on a trial court's failure to do what it was not asked to do. Harris v. Health Care Auth. of City of Huntsville, 6 So.3d 468, 473 (Ala. 2008).

For the reasons set forth above, the summary judgment entered on Hendon's claim of harassment in favor of both Holloway and Lagrone is affirmed, as is the judgment entered in favor of Lagrone as to the claim of malicious prosecution. However, the summary judgment entered in favor of Holloway as to the claim of malicious prosecution is reversed, and the cause is remanded for further proceedings.

Finally, the parties have filed several motions on appeal. Hendon's motion for leave to file a corrected brief is granted. Holloway and Lagrone's motion to strike portions of the statement of facts included in Hendon's appellate brief is granted to the extent that the challenged portions are not supported by the record. Hendon's motion to strike Holloway and Lagrone's motion "for improper form" is denied, as is Hendon's request for an attorney fee of $750.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

Pittman, Thomas, and Donaldson, JJ., concur.

Moore, J., concurs in the result, without writing.


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    Kendra L. BEALL v. Christopher Scott BEALL
    2160035
    Court of Civil Appeals of Alabama.
    May 5, 2017 Rehearing Denied July 21, 2017
    Robert G. Poole of Whittelsey, Whittelsey, Poole & Corley, P.C., Opelika, for appellant.
    Submitted on appellant's brief only.
   MOORE, Judge.

Kendra L. Beall ("the mother") appeals from a judgment of the Lee Circuit Court ("the trial court") addressing competing custody-modification petitions filed by the mother and Christopher Scott Beall ("the father") regarding the only child of the parties' marriage ("the child"). We affirm the trial court's judgment.

Procedural History

The parties were divorced by a judgment entered by the trial court on September 3, 2013; that judgment incorporated a settlement agreement entered into by the parties ("the settlement agreement"). In the settlement agreement, the parties agreed, among other things, that they would share joint legal and physical custody of the child "[u]ntil the time previous to the child's age of enrollment in a K1 program," at which time the parties "shall either mutually agree upon [sole] physical custody or shall have the matter resolved in the court of proper jurisdiction." The parties agreed to alternate physical custody of the child on a week-to-week basis; they noted that they understood that either party could move from Lee County and agreed that, if either or both did so move, they would meet halfway between their two residences to exchange the child.

Sometime around January 2014, the mother moved from Auburn to Greenback, Tennessee, and obtained employment at an architectural firm in Knoxville, Tennessee. Pursuant to the settlement agreement, the parties met in Cartersville, Georgia, a location approximately halfway between Auburn and Greenback, to exchange the child. On December 18, 2014, the mother filed in the trial court a "verified petition for modification, complaint for declaratory judgment, breach of contract, and attorney's fees and costs." The mother asserted that the father had breached the settlement agreement. She sought sole physical custody of the child; an award of attorney's fees; a modification of the father's monthly periodic-alimony obligation to her; and a judgment declaring the rights, duties, and obligations of the parties pursuant to the settlement agreement. The father filed a counterclaim on January 20, 2015, seeking sole physical and legal custody of the child. On May 26, 2015, the father filed an amended counterclaim. The mother filed a reply to the father's counterclaim and amended counterclaim on July 6, 2015.

Following ore tenus proceedings, the trial court entered a judgment on August 12, 2016, in which it stated, in pertinent part:

"Having considered the information presented and received by the Court, the Court finds that the parties are probably doing a better job of co-parenting now than they were when they first came before the Court, although they need to continue working on better, more selfless communication and mutual parental support and less 'do it my way' attitude. Both parties have violated the Court Order and the spirit of co-parenting in different ways."

The trial court proceeded to discuss the choices that had been made by the parties following the entry of the divorce judgment, noting both positive and negative effects the mother's decision to move from Alabama to Tennessee had had on the parties and the child.

With regard to custody of the child, the trial court determined that "[t]he parties shall continue to share joint legal custody of [the] child" and that the parents would also "share physical custody." (Emphasis in original.) The judgment establishes that, as long as the parties reside more than 50 miles apart, the party having physical custody of the child shall have the final authority on medical, dental, religious, and athletic decisions concerning the child and that the father shall have final authority over educational decisions; it further provided, however, that, if she moves within 50 miles of the residence of the father, the mother will have final authority over all of the above-referenced decisions except those concerning the child's athletic activities. The trial court directed the parties to formulate a schedule to facilitate their joint physical custody of the child, but established a "Visitation/Physical Custody Schedule" in the event that the parties could not reach an agreement. The judgment provides one schedule if the mother remains in Tennessee and another if the mother moves to or near Auburn. The trial court ordered each party to pay his or her own attorney's fees and denied all other requested relief. The mother filed a postjudgment motion on August 31, 2016; the father filed a response to that motion on September 15, 2016. On September 21, 2016, the trial court entered an order amending its judgment with regard to the parties' custody periods with the child occurring before July 31, 2017; those amendments do not affect the present appeal. The mother filed her notice of appeal to this court on October 13, 2016.

Facts

The father testified that he was 35 years old at the time of the trial. He stated that his mother resides in Georgia and that his father is deceased. He stated that he does not have any relatives in Auburn, where he lives with the child in a three-bedroom house that he rents. According to the father, the child has lived in Lee County since she was born. He testified that he is employed as the e-commerce manager at Kinnucan's, a specialty outfitter store, where he has worked since June 2013, that he works from 8:00 a.m. to 5:00 p.m. on Monday through Friday of each week and also some weekends, and that he earns $50,000 per year. He admitted, however, that he had engaged in online gaming and gambling and that, at one point after the parties' divorce, he had sought out "payday loans" because his finances were so poor. According to the father, he has three other children by two different women. He stated that he had relinquished custody of one of those children, although, he said, he still owes a child-support arrearage related to that child. He testified further that he exercises visitation with his other two children, who live in Georgia, on the first, second, fourth, and, when applicable, fifth weekends of each month. The father testified that, following his divorce from the mother, he began dating Andrea Riemer in March 2014. According to the father, he and Riemer had broken up in July 2016 because she was still married, although he admitted that he had learned that Riemer was still married approximately six months after they had begun dating. He testified that he had been under the impression that Riemer was legally separated and that, after learning that their situation still constituted adultery, he had discontinued the relationship until Riemer gets divorced. According to the father, he lived with Riemer temporarily, for approximately a month and a half, after he sold the marital residence; the child also stayed with them during the father's custodial periods.

The father testified that the mother moved to Greenback in January 2014 and that, since that time, the parties had met halfway between Greenback and Auburn to exchange the child for their alternating custody periods. He stated that the trip from Auburn to Greenback took between five and six hours and that he had spent approximately $200 on gas each month traveling halfway between the two locations to meet the mother. According to the father, there is not much to do and not a lot of activities for the child to enjoy in Greenback. The father testified that the relationship between the child and the mother had worsened following the mother's move to Tennessee because, when she was with her mother, the child was no longer in the Auburn community or with her friends.

The father testified that the child has become more active as she has gotten older and that there is a lot for the child to do in Auburn. The father stated that he and the child are part of the community in Auburn and that the child had grown a lot in the community and with friends in the Auburn area. According to the father, his home is near the Auburn University campus and he and the child live near the child's school, walk throughout the University campus, and ride bikes in their neighborhood. He stated that he and the child enjoy hiking, camping, paddle-boarding, and other outdoor activities. He stated that, during his weekend visitations with his other two children that coincide with his custody of the child, they do a lot of activities, get a lot of exercise, and walk campus or "catch Pokemon with the Pokemon Go app." The father testified that he and the child have a very close relationship. He stated that he and the child attend Cornerstone Methodist Church, that they go to Sunday school, and that they attend church twice a week. He admitted that he had not been "overly religious" before he had met the mother.

According to the father, the child should attend school in Auburn because she has a lot of friends in the area, because the Auburn City School System is a great school system, and because the child loves her teachers and is excited about attending school in Auburn. He stated that the child attends the after-school program each day after school until he is able to pick her up. The father testified that the child is very close to his other two children that he exercises visitation with and that they have grown closer as they have grown older. He stated that, if the child went to live in Greenback, it would have a detrimental effect on the child's relationship with those other two children, the child's half siblings.

The mother testified that, at the time of the trial, she was 29 years old. She stated that she had moved to Greenback and that she lives in a residence that is located on the same property on which her parents live; their houses are located approximately a half mile apart. She stated that her sister and her sister's son, her grandmother, her aunt, her uncle, her cousins, and her cousin's children all live in east Tennessee. According to the mother, she graduated from Auburn University in 2013 with degrees in architecture and interior architecture. She stated that she had been employed following her graduation from college by an architecture firm in Newnan, Georgia, although she had continued to reside in Auburn. The mother testified that she had moved to her parents' residence in Greenback in January 2014 and that she had advised the father that she was moving. She stated that the job in Newnan had ended and that she had been unable to find employment in Newnan, Chattanooga, Tennessee, or Atlanta, Georgia, but that she had found a job at an architecture and engineering firm in Knoxville, Tennessee, where she had been employed for over two and a half years at the time of the trial. According to the mother, she was earning $45,760 per year at the time of the trial. She testified that her work hours are flexible, that the firm is very family-oriented, and that, if needed, she is able to take time off to spend with the child.

The mother testified that she attends church in Greenback, that she serves as a deacon, and that she teaches children's church and Sunday school. David Bell, a reverend at the church the mother attends in Greenback, testified, among other things, that he knows the mother mostly through the church, that the mother and the child have been active as members, and that the mother and the child have a very loving and secure relationship. The mother testified that the child attends Sunday school and children's church during her custody periods and that she encourages the child to attend and participate in church activities. According to the mother, the child also participates in a gymnastic program through the preschool she attends in Tennessee. The mother stated that the child has friends in Greenback and that the child had recently celebrated her fifth birthday in Greenback with a party that approximately 23 or 24 children and 50 people total had attended. The mother admitted that the child had handled the parties' alternating custody arrangement "decently well" since the mother had moved to Greenback, although she admitted that it had definitely been tough at times on the child. She stated that the child had been upset at the end of the alternating custody periods at times. The mother testified that continuing the current custodial schedule would not work based on the child's entering school.

The mother stated that she had been the child's primary caregiver before the parties' divorce, although she agreed that she and the father had both been primary caregivers to the child since their divorce. The mother stated that, in Greenback, her parents serve as a support system and are available to help her with the child as needed. According to the mother, education is very important to her, and, she said, she had provided the father with information regarding the elementary school the child would attend in Tennessee. She stated that she had been pleased with that school. The mother admitted that the child had enjoyed a good relationship with the father's other two children with whom he exercises visitation when the child was younger, although, she said, she no longer witnessed that relationship. She agreed that it was important for the child to have a relationship with her half siblings. The mother testified that she and the child had gone camping and horseback riding together while the child was with her in Tennessee. She stated that they do not spend much time inside when the child is in Tennessee.

Standard of Review

" 'In a case in which the evidence is presented to the trial court ore tenus, such as this one, the findings of the trial court are presumed correct and will not be set aside unless they are plainly and palpably wrong or unjust.' Tibbs v. Anderson, 580 So.2d 1337, 1339 (Ala. 1991). 'Furthermore, where the trial court does not make findings of fact, it will be assumed that the trial court made those findings that were necessary to support its judgment, unless the findings would be clearly erroneous.' Ex parte Walters, 580 So.2d 1352, 1354 (Ala. 1991)."

Brown v. Brown, 26 So.3d 1210, 1213-14 (Ala. Civ. App. 2007).

Analysis

The mother essentially argues that the trial court erred in failing to award her sole physical custody of the child. Taking her arguments out of turn, we first address the mother's contention that the terms of the settlement agreement required the trial court to award one of the parties sole physical custody of the child.

The settlement agreement provides that, upon the child's reaching kindergarten age, "the Parties shall either mutually agree upon primary physical custody or shall have the matter resolved in the Court of proper jurisdiction." The mother maintains that, because the parties could not agree regarding which party should have sole physical custody of the child as she reached kindergarten age, pursuant to the unambiguous terms of the settlement agreement, the trial court was required to award sole physical custody to one party or the other. We do not agree. The settlement agreement merely provides that the trial court would resolve the matter of custody in the event that the parties could not agree on which party should have sole physical custody. Furthermore, even if the settlement agreement could be read as the mother contends, the settlement agreement could not bind the court to prevent it from making a custody determination that it deemed in the best interests of the child because a settlement agreement is not conclusive when a material change of circumstances has occurred since the entry of the judgment incorporating the agreement. See Means v. Means, 512 So.2d 1386, 1388 (Ala. Civ. App. 1987). In fact, in Means, this court held that a trial court had erred by enforcing a settlement agreement after finding that a material change of circumstances had occurred.

We next address the mother's contention that the trial court did not actually decide the custody dispute. The final judgment directs the parties to set out in writing their agreement as to a schedule for sharing physical custody of the child, but provides that, in the event that the parties cannot reach an agreement, the trial court's "Visitation/Physical Custody Schedule" shall govern. Under the trial court's schedule, the parties shall split sole physical custody of the child for designated periods until July 31, 2017, after which the father shall have sole custody of the child, subject to specified visitation for the mother. The mother complains that the trial court "passed the buck" by failing to simply award her sole physical custody of the child. Our caselaw holds that a provision that leaves visitation to the discretion of the parties is valid as long as the court provides a definite schedule in the event the parties cannot agree. See Burleson v. Burleson, 875 So.2d 316, 321 (Ala. Civ. App. 2003) ; Moody v. Nagle, 811 So.2d 546, 548 (Ala. Civ. App. 2001) (per Crawley, J., with one judge concurring and one judge concurring in the result). In this case, the trial court left it to the parties to agree on their "custodial periods" and "visitation periods," but the court specifically established custody and visitation in the event of a disagreement. Thus, we consider the custody provisions to be valid and to conclusively determine the rights of the parties so as to be a final judgment. See Tidwell v. Tidwell, 496 So.2d 91, 92 (Ala. Civ. App. 1986) (defining a "final judgment" as "a terminal decision which demonstrates there has been complete adjudication of all matters in controversy between the litigants"); compare Barsell v. Barsell, 882 So.2d 859 (Ala. Civ. App. 2003) (holding that order requiring father to return to reside in Alabama, subject to future modification of custody in the event of his refusal, was not a final judgment).

The mother also argues on appeal that the trial court's custody/visitation schedule is not supported by the evidence. That schedule essentially awards the father sole physical custody of the child subject to the mother's scheduled visitation after July 31, 2017, unless the mother returns to live in the Auburn area.

"Where, as in the present case, there is a prior judgment awarding joint physical custody, ' "the best interests of the child" ' standard applies in any subsequent custody-modification proceeding. Exparte Johnson, 673 So.2d 410, 413 (Ala. 1994) (quoting Ex parte Couch, 521 So.2d 987, 989 (Ala. 1988) ). To justify a modification of a preexisting judgment awarding custody, the petitioner must demonstrate that there has been a material change of circumstances since that judgment was entered and that ' "it [is] in the [child's] best interests that the [judgment] be modified" ' in the manner requested. Nave v. Nave, 942 So.2d 372, 376 (Ala. Civ. App. 2005) (quoting Means v. Means, 512 So.2d 1386, 1388 (Ala. Civ. App. 1987) )."

Ex parte Blackstock, 47 So.3d 801, 804-05 (Ala. 2009).

In its final judgment, the trial court noted that the mother had relocated to Tennessee, thereby depriving the child of daily contact with both parents and requiring the child to make long weekly trips. The mother claims that the trial court improperly used her relocation against her even though, she says, the parties had contemplated in the settlement agreement the possibility of the relocation by either party. The settlement agreement provides that "[t]he Parties understand that either Party may move from Lee County ....," but nothing in that provision can be interpreted to prevent the trial court from considering the mother's relocation with regard to the child's best interests. See Means, supra. When deciding whether to modify custody based on changed circumstances, the trial court certainly could consider the decision of the mother to relocate and its impact on the child. See Vail v. Vail, 532 So.2d 639, 641 (Ala. Civ. App. 1988).

The mother also challenges on appeal the trial court's finding that she violated the settlement agreement and the "spirit of co-parenting" and asserts that the trial court erroneously disregarded the character of the parties because, she says, the evidence presented regarding the father revealed negative characteristics while the evidence pertaining to the mother revealed only positives. We note, however, that the trial court stated in its judgment, after recounting certain of the father's actions following the entry of the divorce judgment, that,

"although [the father] has certainly made many self-focused choices, one of the most impactful choices either of these parents has made was [the mother's] decision that her own personal and professional advancement was more important than [the child] having both parents in the same location. When she chose to move back to Tennessee, she chose that [the child] likely wouldn't have mom and dad visit her at school or watch her in gymnastics. She chose that [the child] might have more time with her maternal grandparents (as wonderful as they are) than with her father. As a result, [the child] has had to leave home for Tennessee every other week, with the possibility that she might move there for a majority of the time."

The trial court's findings that the mother's move to Tennessee had affected the child are supported by the evidence. Thus, even assuming that the trial court erred in concluding that the mother had violated the settlement agreement or the spirit of co-parenting, any such error would not have affected the findings supporting the trial court's judgment and, thus, would be harmless. See Rule 45, Ala. R. App. P. Accordingly, we decline to reverse the trial court's judgment on that basis.

Finally, the mother argues that the findings recited in the trial court's judgment would support only an award of sole physical custody to the mother.

"When evidence in a child custody case has been presented ore tenus to the trial court, that court's findings of fact based on that evidence are presumed to be correct. The trial court is in the best position to make a custody determination-it hears the evidence and observes the witnesses. Appellate courts do not sit in judgment of disputed evidence that was presented ore tenus before the trial court in a custody hearing. See Ex parte Perkins, 646 So.2d 46, 47 (Ala. 1994), wherein this Court, quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala. Civ. App. 1993), set out the well-established rule:
" ' "Our standard of review is very limited in cases where the evidence is presented ore tenus. A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, Payne v. Payne, 550 So.2d 440 (Ala. Civ. App. 1989), and Vail v. Vail, 532 So.2d 639 (Ala. Civ. App. 1988), and we will not reverse 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. Gamble v. Gamble, 562 So.2d 1343 (Ala. Civ. App. 1990) ; Flowers v. Flowers, 479 So.2d 1257 (Ala. Civ. App. 1985)." '
"It is also 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).

The mother admitted that her move to Tennessee had been difficult on the child. Additionally, the father presented evidence indicating that the child benefits from the Auburn community in which she has been raised, citing the availability of outdoor activities that the child enjoys, the child's friends and relationships within the Auburn community, the proximity to a college campus that allows for walking and other activities, and the high-ranking public schools in the area. The father also testified that the child's relationship with the mother had declined after the mother moved to Tennessee. We acknowledge that the mother presented evidence indicating that the child would benefit from residing with her in Tennessee and that she would be a good sole custodian for the child. However, "[i]n instances where the evidence shows that either parent is an appropriate custodian of the minor children, the appellate court is bound to defer to the trial court's custody decision based on the trial court's observations of the witnesses, its credibility determinations, and its resolution of conflicting evidence." Bates v. Bates, 678 So.2d 1160, 1162 (Ala. Civ. App. 1996).

Because the mother has failed to raise any arguments before this court that merit reversal of the trial court's judgment, that judgment is affirmed.

AFFIRMED.

Thompson, P.J., and Pittman, Thomas, and Donaldson, JJ., concur.

      The settlement agreement uses the term "primary" physical custody. We use the term "sole" physical custody throughout this opinion to conform to the term used in § 30-3-150 et seq., Ala. Code 1975.

      In her brief, the mother challenges only those aspects of the trial court's judgment establishing custody in the event the mother does not return to reside in or near Auburn. Hence, we do not address the validity of the alternative custody provisions purportedly in effect in the event the mother does relocate to the Auburn area. But see Hovater v. Hovater, 577 So.2d 461, 462 (Ala. Civ. App. 1990) ; and Hodgins v. Hodgins, 84 So.3d 116, 126 (Ala. Civ. App. 2011).

      Although the father claimed that the mother had violated provisions of the Alabama Parent-Child Relationship Protection Act, § 30-3-160 et seq., Ala. Code 1975, the trial court did not apply the Act, which deals comprehensively with the subject of the relocation of a custodial parent. The father has not filed a cross-appeal, so we do not consider whether the trial court erred in failing to apply the Act.


author: THOMAS, Judge.

text:
    Seth WEAVER v. Jessi JEFFERSON
    2160163
    Court of Civil Appeals of Alabama.
    May 19, 2017 Rehearing Denied July 14, 2017
    Roy O. McCord of McCord Law Firm, Gadsden, for appellant.
    John D. Floyd of Floyd Law Firm, LLC, Gadsden, for appellee.
   THOMAS, Judge.

Seth Weaver ("the father") and Jessi Jefferson ("the mother") are the parents of a child ("the child"). The parents were divorced by a judgment entered by the Etowah Circuit Court in December 2014. Although the divorce judgment does not appear in the record, certain orders of the circuit court, which do appear in the record, indicate that it had awarded the father "primary" physical custody of the child. According to the mother, before she relocated from Georgia to Alabama in March 2015, she had exercised visitation with the child one weekend per month.

On April 19, 2016, the mother filed a modification petition seeking an award of custody of the child, and an ex parte motion seeking immediate custody, because, she asserted, the father had been arrested on outstanding warrants that had been issued in Georgia. That same day, the circuit court entered an ex parte order awarding the mother temporary custody of the child based on its determination that the father was currently incarcerated in the Etowah County Detention Center. On April 27, 2016, the father filed a motion requesting that the circuit court set aside the ex parte order. The record demonstrates that on June 9, 2016, the circuit court held a hearing at which it heard arguments of counsel, and, that same day, it entered an order setting aside the ex parte order. The June 9, 2016, order reads, in pertinent part:

"As [the father] is now on bond status regarding the charges in Georgia, the grounds upon which the emergency petition was granted are no longer present.
"Therefore, primary physical custody shall revert back to the [father], per the original decree, pending the Court hearing the petition of [the mother] for the modification of primary physical custody."

However, because the mother was entitled to exercise custody of the child pursuant to the summer-visitation schedule in the divorce judgment, the child remained with the mother and had been in the mother's custody for more than three months when the modification hearing occurred on July 26, 2016.

On August 8, 2016, the circuit court entered a judgment ("the modification judgment") determining that the mother had met the custody-modification standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala. 1984) ("the McLendon standard"), "by sufficiently addressing the issues of concern discussed in the original decree" and by achieving stability. It awarded, among other things, "primary physical care, custody, and control" of the child to the mother, joint legal custody of the child to the parents, and visitation to the father. The circuit court's findings include, as material changes of circumstances, that the father had encountered "a catastrophic medical condition of a new child" and "some pending out-of-state legal issues." The father filed a postjudgment motion, which circuit court granted in part; however, the amendment to the modification judgment is not pertinent to this appeal. The father filed a timely notice of appeal seeking this court's review of whether the circuit court "correctly appl[ied]" the McLendon standard.

"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 substitute 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)."

K.U. v. J.C., 196 So.3d 265, 268-69 (Ala. Civ. App. 2015).

At the time of the modification hearing, the child was four years old. The mother testified that her circumstances had improved because she had achieved stability. She testified that she had married, had relocated to Alabama, had given birth to another child, and had obtained employment. According to the mother, if the circuit court awarded custody of the child to her, the child would have her own bedroom in a two-bedroom house and would attend day care and a preschool program. The mother testified that the child loves the mother's husband ("the stepfather") and that the child enjoyed the support of the mother's family and the stepfather's family. The mother's father-in-law testified that he and his wife were "always available." The mother's mother-in-law testified that the child is "very attached" to the stepfather. The mother said that after the ex parte custody order had been entered the child had visited the father for only one week but that the mother had routinely allowed him to "FaceTime" with the child.

The father agreed that the mother had achieved stability, and he requested that the circuit court award the mother increased visitation. However, he testified that there had been no material change in circumstances. He said that, if the circuit court did not modify the child's custody, she would continue to live in the same four-bedroom house with his wife ("the stepmother"), her son, the child's younger half sibling ("the child's half brother"), and the child's paternal grandparents; that the child would continue to attend the same preschool; that she would continue to have the same teacher; that she would continue to enjoy the support of his family; and that he would continue to work for the same employer.

The father testified that the child's half brother was less than two years old and that he suffers from brain, kidney, and liver damage. The father said that the child's half brother's medical conditions had required hospitalizations but that the "extra attention" he required had been primarily provided by the stepmother who works from home.

The mother did not offer any testimony regarding the father's legal issues in Georgia. The following testimony was elicited from the father by his attorney:

"Q: Has there been a resolution yet to the criminal case in Georgia?
"A. Not yet, no.
"Q. Okay. Have you heard anything from your lawyer over there about the discovery or the process of trying to negotiate or anything like that?
"A. He said he's been talking with the district attorney over there to get it dropped."

However, "[w]e note that the trial court is allowed to take judicial knowledge of all previous proceedings and that it could consider the prior matters and is not required to forget the past." T.T. v. State Dep't of Human Res., 796 So.2d 365, 367-68 (Ala. Civ. App. 2000) (noting trial court's ability, in termination-of-parental-rights case, to take judicial notice of prior proceedings in that court involving the parent and the child)(citing Clark v. State, 523 So.2d 131 (Ala. Civ. App. 1988) ). At the hearing on the mother's ex parte motion, the mother's attorney had argued that the father had been indicted for theft of services in Georgia regarding a utility account. The mother's attorney said:

"[The father] bonded out there and has a pending case. I don't think anybody disputes that. I think they agree with that.
"What's going to happen with that case, we do not know. Under Alabama law, Judge, I'm sure even if he were convicted of the offense, it would not be something that would require prison time.
"... So worst case scenario, he's going to be on probation with a felony conviction.
"....
"[Leaving the child in the care of the stepmother] happened on one occasion, and [the mother's] concern is, until we get to a final hearing, this could happen again. We don't know. And that [poses] a present danger to the child and the child's safety."

Based on the foregoing, we conclude that the circuit court could not have properly determined that there had been a material change in circumstances and that, furthermore, the circuit court was not presented with evidence demonstrating that the positive good brought about by a modification of the child's custody would more than offset the inherently disruptive effect caused by uprooting the child or that the change in custody would materially promote the best interests of the child. Ex parte McLendon, 455 So.2d at 865-66.

"The McLendon standard is designed 'to minimize disruptive changes of custody because this Court presumes that stability is inherently more beneficial to a child than disruption.' Ex parte Cleghorn, 993 So.2d [462] at 468 [ (Ala. 2008) ]. When implementing the McLendon standard, a trial court should allow a transfer of custody 'only after a sifting inquiry to assure that the stability and other interests of the child ... have been properly considered.' Gallant v. Gallant, 184 So.3d [387] at 399 [ (Ala. Civ. App. 2014) ]."

K.U., 196 So.3d at 272.

Although the mother demonstrated that she is a fit custodian, the mother presented no evidence demonstrating that the medical needs of the child's half brother or the father's ongoing legal issues in Georgia had affected the welfare of the child or that the positive good brought about by the change in the child's custody would more than offset the disruptive effect of uprooting the child.

"The law is well settled that '[a] parent seeking to modify a custody judgment awarding [sole] physical custody to the other parent must meet the standard for modification of custody set forth in Ex parte McLendon [, 455 So.2d 863 (Ala. 1984) ].' Adams v. Adams, 21 So.3d 1247, 1252 (Ala. Civ. App. 2009). Ex parte McLendon requires that
" 'the noncustodial parent seeking a change of custody must 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." Kunkel v. Kunkel, 547 So.2d 555, 560 (Ala. Civ. App. 1989) (citing, among other cases, Ex parte McLendon, 455 So.2d 863, 865-66 (Ala. 1984) (setting forth three factors a noncustodial parent must demonstrate in order to modify custody)).'
" McCormick v. Ethridge, 15 So.3d 524, 527 (Ala. Civ. App. 2008). It is not sufficient for a noncustodial parent seeking a modification of custody to show that he or she is a fit custodian. Id. The noncustodial parent must prove all three McLendon factors in order to warrant a modification of custody. Id."

Gordon v. Gordon, 231 So.3d 347, 353(Ala. Civ. App. 2017).

Therefore, the modification judgment is reversed, and the cause is remanded for the circuit court to enter an order consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Thompson, P.J., and Pittman, Moore, and Donaldson, JJ., concur.

      We interpret the divorce judgment as having awarded the father sole physical custody. See Ex parte Stouffer, 214 So.3d 1192, ---- (Ala. Civ. App. 2016) ; see also Smith v. Smith, 207 So.3d 72, 73 n.1 (Ala. Civ. App. 2016) ("The term 'primary' physical custody is an incorrect term and is not recognized in Alabama law."); and Whitehead v. Whitehead, 214 So.3d 367, ---- (Ala. Civ. App. 2016) (Thomas, J., dissenting).

      As noted by the father in his appellate brief, the testimony regarding the mother's employment is confusing. Apparently, the mother had been released from her employment as a teacher in Tuscaloosa County, and she had acquired new employment as a substitute teacher in Shelby County.

      "FaceTime" refers to a video-telephone service that makes it possible to conduct video-telephone conversations.

      The child's preschool teacher testified that she had been the child's teacher for two years, that the child would again be enrolled in her class, that the child was well-adjusted, and that the child was well-liked by her classmates.

      "As to theft of services, '[a] person commits the offense of theft of services when by deception and with the intent to avoid payment he knowingly obtains services, accommodations, entertainment, or the use of personal property which is available only for compensation.' [Ga. Code Ann.,] § 16-8-5."
      Jackson v. State, 301 Ga.App. 406, 408, 687 S.E.2d 666, 669 (2009).


author: DONALDSON, Judge.

text:
    In the MATTER OF ANONYMOUS, a minor
    2160759
    Court of Civil Appeals of Alabama.
    July 12, 2017
   DONALDSON, Judge.

The Alabama Legislature has provided that, generally, an abortion cannot be performed upon a minor without "the written consent of either parent or the legal guardian of the minor." § 26-21-3(a), Ala. Code 1975. The legislature has also provided that a juvenile court may waive the parental-consent requirement in specific circumstances. § 26-21-3(d) and § 26-21-4, Ala. Code 1975.

In this case, a 12-year-old minor who is in the custody of the Department of Human Resources ("DHR") petitioned the juvenile court to waive the requirement that she obtain parental consent for an abortion. The record shows that the minor had been impregnated by an adult relative while the minor was in the custody of the minor's mother; that the minor had been removed from the custody of the minor's mother by DHR five times; and that the identity and whereabouts of the minor's father were unknown. After hearing testimony from the minor and a DHR caseworker, and after considering other evidence, the juvenile court found that the requirements for waiving parental consent established by the legislature had been met. Under the applicable standard of review, discussed infra, we must affirm the judgment of the juvenile court.

The facts underlying this appeal are largely undisputed. After the minor filed a petition seeking the waiver of parental consent to have an abortion, the juvenile court issued an order setting the matter for a hearing, appointing an attorney and a guardian ad litem for the minor, and notifying DHR and the district attorney of the county in which the minor was located, as required by § 26-21-4(i), Ala. Code 1975.

All those parties participated in the trial on the minor's petition.

At the time of the trial, the minor was 12 years old and had been pregnant for approximately 13 weeks. The minor's pregnancy was the result of statutory rape committed by an adult relative that occurred while the minor was in her mother's custody. The minor had been living in a home with her mother, her stepfather, her four siblings, and an uncle. The minor learned that she was pregnant after she complained of stomach pain and visited a hospital with her mother. Although the record is not entirely clear, it appears that the minor's mother had become physically abusive after learning of the minor's pregnancy, that law enforcement was contacted, and that the minor and her four siblings were placed in the custody of DHR, pursuant to dependency proceedings. After entering DHR's custody, the minor was taken to another hospital for prenatal care. After the minor indicated that she wanted to end the pregnancy, the minor was referred to a clinic to discuss her options, which included abortion and adoption.

During the trial, the DHR caseworker involved in the minor's dependency case testified that she had met the minor two weeks before the trial when the minor was removed from her mother's custody. The caseworker testified that the minor's father's identity and whereabouts were unknown, but that he was believed to be living in a Central American country. The caseworker testified that a relative of the minor had been charged with statutory rape related to the minor's pregnancy and that the minor had told the caseworker that she wanted to end the pregnancy. The caseworker testified that she was aware of a history of physical abuse and neglect involving the minor's mother and that this was the fifth occasion that the minor and her siblings had been removed from their mother's custody.

The caseworker testified that the minor is shy, but that she appears to interact at a normal sixth-grade level, and that no interactions had caused the caseworker concern about the minor's ability to communicate or understand information.

The minor had just completed the fifth grade at the time of the trial. The minor testified that she speaks both Spanish and English. The minor testified that she was surprised to discover that she is pregnant and that she is "scared." The minor testified that she is too young to have a baby and that she does not want to give birth and place the baby for adoption because she is scared.

The minor testified that she did not want her mother to be a part of the proceeding or to help her make a decision regarding an abortion and that she and her mother do not have a good relationship. The minor testified that her mother knows of her pregnancy and is mad about it but that her mother told her that the decision regarding whether to have an abortion is a decision that the minor must make. The minor testified that she does not know her biological father and that she understood that he is in a Central American country.

When asked whether she knew the outcome of an abortion, the minor testified that an abortion will end the pregnancy. The minor testified that she did not know how the abortion procedure is completed or any risks associated with the procedure but that she had received documents relating to those issues from the clinic.

The juvenile court entered an order on June 27, 2017, waiving the requirement of parental consent. The district attorney filed a notice of appeal to this court on the same day. In 2014, the legislature amended portions of §§ 26-21-1 et seq., Ala. Code 1975, to, among other things, afford "the district attorney's office, and any guardian ad litem, or the parent, parents, or legal guardian of the minor" the right to appeal in such proceedings. § 26-21-4(n), Ala. Code 1975. At the same time, the legislature also added § 26-21-4(i), which requires the juvenile court, after a petition to waive parental consent is filed, to "immediately notify the district attorney's office of the county in which the minor is a resident, or the county where the petition was filed of the filing of the petition on the day of such filing" and which provides that

"the district attorney or his or her representative shall participate as an advocate for the state to examine the petitioner and any witnesses, and to present evidence for the purpose of providing the court with a sufficient record upon which to make an informed decision and to do substantial justice."

In its brief to this court, the district attorney acknowledges its limited role in these proceedings, stating:

"The purpose of the District Attorney is to be an advocate of the State, to examine witnesses, to provide the court with a sufficient record, and to assure that the decision of the court does substantial justice. Ala. Code 1975 § 26-21-4(i). The District Attorney is neither an advocate for or against the granting of consent, but rather serves to protect the process."

We note that the record shows that members of the district attorney's office appeared and examined witnesses at the trial. On appeal, the only alleged procedural deficiency in the process that the District Attorney points this court to is that,

"[a]lthough the Juvenile Court made [the] factual determination that the pregnancy was the product of [a] criminal act perpetrated by a relative, and that there was a lack of familial support for the minor mother, those conclusions flow from allegations in the companion dependency case and were not facts or circumstances established in the subject hearing."

We note that the juvenile court informed the parties at trial-without objection-that it was taking judicial notice of the dependency petition regarding the minor, and the facts and circumstances surrounding that petition, which it was permitted to do because the juvenile judge presided over both cases. See Ex parte State Dep't of Human Res., 890 So.2d 114, 118 (Ala. 2004) ("A judge may take judicial notice of his own court's records."). The record indicates that the dependency proceeding was initiated, in part, based on the minor's mother's violent reaction to the minor's pregnancy and the allegation that the minor's mother was aware of the repeated rape of the minor by a relative and that this was the fifth occasion that the minor and her siblings had been removed from their mother's custody.

The district attorney further argues that the evidence demonstrated that the minor is too immature to make an informed decision and that there is no evidence that the abortion would be in the minor's best interest. We will address those arguments, which challenge the sufficiency of the evidence, to the extent that those arguments could be construed as being consistent with the statutory "purpose of providing the court with a sufficient record upon which to make an informed decision and to do substantial justice." § 26-21-4(i).

Pursuant to § 26-21-4(g), the legislature has provided that the juvenile court shall waive the parental-consent requirement if the court finds either: "(1) That the minor is mature and well-informed enough to make the abortion decision on her own; or (2) That performance of the abortion would be in the best interest of the minor." See also In re Anonymous, 771 So.2d 1043, 1044 (Ala. Civ. App. 2000) (quoting Ex parte Anonymous, 595 So.2d 497, 498 (Ala. 1992) )(explaining that the " 'petition for waiver of parental consent may be denied only if the court specifically finds both that (1) the minor is immature and not well enough informed to make the abortion decision on her own, and (2) that performance of the abortion would not be in her best interest' "). We note that the legislature has provided that the juvenile court "shall" waive parental consent if one of the requisite findings in § 26-21-4(g) is made. "The word 'shall; is clear and unambiguous and is imperative and mandatory." Ex parte Prudential Ins. Co. of Am., 721 So.2d 1135, 1138 (Ala. 1998) (citing Tuscaloosa Cty. Comm'n v. Deputy Sheriffs' Ass'n of Tuscaloosa Cty., 589 So.2d 687 (Ala. 1991) ).

The juvenile court specifically made the following findings, among others:

"The performance of an abortion is in the best interest of the [minor] given the age of the [minor], the fact that the [minor] is pregnant by way of a criminal act perpetrated against her by a relative, and the lack of familial support available to the [minor].
"The [minor's] parent(s) have allowed such a pattern of physical, sexual, or emotional abuse against the [minor] that the consent of her parents, parent, or legal guardian is not in her best interest.
"....
"The [minor] provided probative and admissible evidence that she has been informed and understands the medical procedure of abortion and its consequences as much as any twelve-year-old can. She also testified that she has been informed and counseled by a qualified person as to the alternatives to abortion. The [minor] has presented probative evidence to the Court of her maturity and has demonstrated to the Court that she has the maturity and decision making capabilities typical of her age and abilities.
"The totality of the evidence is probative and of such weight that it proves the [minor] should make this decision on her own. Furthermore, the abortion is in her best interest in accordance with Ex parte Anonymous, ... 531 So.2d 901 (Ala. 1988), whereas [the minor] is a twelve-year-old victim of rape, with the suspect being a relative; is currently a ward of the State; and has no family to turn to for support, consultation, or assistance.
"The [minor] has provided the Court with a substantive explanation of why she cannot consult with her parent, parents, or legal guardian to assist her in making the decision."

In support of the argument that the evidence demonstrated that the minor is too immature to proceed without parental consent, the district attorney argues that the evidence demonstrated that the minor does not understand the potential complications that could arise from undergoing the abortion procedure, that the minor was unaware of her own health history, and that the minor does not understand that an abortion will end the life of the fetus. The minor responds, and the evidence reflected, that she had been to two hospitals before being referred to a clinic, that she had seen an ultrasound of the fetus, that she was informed of her options of abortion and adoption, that she does not want to have a child, and that she wants to end the pregnancy through abortion.

The evidence indicated that the minor told health-care professionals that she wanted to end the pregnancy and that she did not want to have a baby, and the minor's testimony at the trial echoed that desire. The juvenile court could have found that the minor sufficiently understood the outcome of an abortion procedure and that she had the maturity, in the context of this situation, to make this decision independently, without input from her mother.

We are aware of the indicia of immaturity contained in the record, but the maturity determination is not for this appellate court to make. "In [cases involving the waiver of parental consent for an abortion]-where the trial court has had the opportunity to observe the witness and where assessments of the level of the minor's maturity are crucial-the trial court's findings should be afforded considerable deference." Ex parte Anonymous, 803 So.2d 542, 546 (Ala. 2001). Our supreme court has held that the ore tenus rule is applicable in such cases, because it is

"the trial judge's responsibility to determine whether the petitioner is mature enough and well-informed enough about the abortion procedure to make an independent decision whether to undergo an abortion without parental consent. See § 26-21-4(f), Ala. Code 1975. In addition to hearing the testimony, the trial judge ... observe[s] the minor and [can] consider her demeanor as she testifie[s]. That aspect of the evidence is denied an appellate court by a cold record. The trial judge [is] in a far better position than [is an appellate court] to determine, as a matter of fact, the minor's maturity and level of knowledge."

803 So.2d at 546. "Applying the ore tenus rule, as ... required ... by Ex parte Anonymous, 803 So.2d 542 (Ala. 2001), [an appellate court] affords the trial court's findings considerable deference and will reverse the trial court's judgment only when that judgment is 'plainly erroneous or manifestly unjust.' " Ex parte Anonymous, 808 So.2d 1030, 1033 (Ala. 2001).

Even if the minor were deemed too immature and not sufficiently well informed to independently make the decision, the juvenile court's inquiry does not end there. The juvenile court must also determine whether the performance of the abortion is in the minor's best interest. § 26-21-4(g)(2), Ala. Code 1975. The district attorney challenges the juvenile court's finding that the abortion is in the minor's best interest, arguing that the "only circumstance" presented to the juvenile court regarding the minor's best interest is that she is 12 years old and that there was no testimony offered to indicate that the pregnancy and/or delivery would present a health risk to the minor.

In Ex parte Anonymous, 531 So.2d 901 (Ala. 1988), our supreme court reversed a juvenile court's denial of a petition for waiver of parental consent. In that case, the minor was 12 years old and the pregnancy was the result of statutory rape by a 16-year-old. The supreme court found "ample objective evidence of immaturity" but noted that "the minor, in giving testimony, was coherent and consistent in saying that she wanted an abortion, that she did not want to have the baby, [and] that she could not take care of a baby." Id. at 905. The supreme court held:

"The facts that the minor is a ward of the State, that she has no family to turn to for support ..., and that her family has a history of psychological problems, all add to the facts of her tender years and her only 'fair' (not 'good') prognosis for delivery of the baby in indicating that it is not in her best interest to carry to term and deliver."

Id. In this case, the minor is in the custody of DHR based on reports of physical abuse at the hands of her mother, the minor does not know her biological father, this is the fifth time that the minor has been removed from her mother's custody, the minor has no familial support, and the pregnancy was a result of statutory rape by an adult relative of the minor that occurred while the minor was in her mother's custody. The minor consistently stated that she wanted an abortion, that she was too young to care for a child, that she was scared, and that she did not want to have a child. Based on Ex parte Anonymous, 531 So.2d 901 (Ala. 1988), and based on the deference afforded to the juvenile court's decision, we affirm the judgment of the juvenile court.

AFFIRMED.

Thompson, P.J., and Pittman, J., concur.

Moore, J., concurs in the result, without writing.

      The specific relation is not contained within the record.

      The dependency proceedings remained pending at the time of the trial in this action.

      The minor does not raise an issue in her appellate brief regarding the scope of the arguments advanced by the district attorney.


author: PITTMAN, Judge. MOORE, Judge, dissenting.

text:
    C.M. v. JEFFERSON COUNTY DEPARTMENT OF HUMAN RESOURCES
    2160219
    Court of Civil Appeals of Alabama.
    July 28, 2017
    Ross Kinder of Kinder Law Firm, LLC, Birmingham, for appellant.
    Steve Marshall, atty. gen., and Sharon E. Ficquette, gen. counsel, and Elizabeth L. Hendrix, asst. atty. gen., Department of Human Resources, for appellee.
   PITTMAN, Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(A), Ala. R. App. P.; Ala. Code 1975, § 12-15-319(a)(12) ; Campbell v. White, 77 Ala. 397, 398 (1884) ; J.C. v. State Dep't of Human Res., 986 So.2d 1172, 1183 (Ala. Civ. App. 2007) ; K.N.F.G. v. Lee Cty. Dep't of Human Res., 983 So.2d 1108, 1115 (Ala. Civ. App. 2007) ; Ex parte Russell, 911 So.2d 719, 725 (Ala. Civ. App. 2005) ; S.C.D. v. Etowah Cty. Dep't of Human Res., 841 So.2d 277, 278 (Ala. Civ. App. 2002) ; and 17 C.J.S. Continuances § 41.

Thompson, P.J., and Thomas and Donaldson, JJ., concur.

Moore, J., dissents, with writing.

MOORE, Judge, dissenting.

C.M. ("the father") appeals from a judgment entered by the Jefferson Juvenile Court ("the juvenile court") terminating his parental rights to J.C.M. ("the child").

On appeal, the father first argues that the trial court exceeded its discretion by denying his request for a continuance of the trial because the father was allegedly ill. I conclude that, because the father failed to present evidence proving that he was too ill to attend the trial, this court cannot reverse the juvenile court's judgment on the basis that the juvenile court exceeded its discretion in denying his motion for a continuance. See S.C.D. v. Etowah Cty. Dep't of Human Res., 841 So.2d 277, 278 (Ala. Civ. App. 2002), and Ex parte Russell, 911 So.2d 719, 725 (Ala. Civ. App. 2005) ). Nevertheless, for the reasons expressed below, I conclude that the juvenile court's judgment should be reversed.

The father also argues that there was not clear and convincing evidence indicating that he was unable or unwilling to care for the child. Section 12-15-319(a), Ala. Code 1975, provides, in pertinent part:

"If the juvenile court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parent[ ] of a child [is] unable or unwilling to discharge [his or her] responsibilities to and for the child, or that the conduct or condition of the parent[ ] renders [him or her] unable to properly care for the child and that the conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parent[ ]."

In the present case, Sabrina Boswell, a caseworker with the Jefferson County Department of Human Resources ("DHR"), testified that the case had originated in March 2015 when DHR received a report that the child's mother, S.M. ("the mother"), who was married to the father at that time, had posted on Facebook, a social-media Web site, that she had given the child, who was less than two months old, mashed potatoes and rice cereal mixed with his formula, as well as ice cream. Boswell also testified that the mother had posted on Facebook that she had given the child melatonin and that he had slept almost 12 hours. The evidence indicated that, when DHR arrived at the family's house, there were at least seven dogs in the house and the house was in disarray, contained mold, and smelled like animal waste. Boswell admitted, however, that a nurse had informed DHR's workers that the food and melatonin that the parents had given the child had not been harmful to the child. Boswell testified that, because the mother and the father had denied the allegations against them, they had ultimately been found "not indicated" for abuse or neglect. Nonetheless, the child was found to be dependent, DHR was awarded custody of the child on March 20, 2015, and the child was placed into foster care at that time.

Boswell testified that DHR had developed a reunification plan that had required, among other things, that the father submit to a psychological evaluation and follow the recommendations from that evaluation; obtain stable housing and employment; and complete parenting, domestic-violence, and anger-management classes. Patrick Dunne, a licensed professional counselor at the time of the father's psychological evaluation, testified that he had performed a psychological evaluation on the father and that evaluation had resulted in a provisional diagnosis of a personality disorder and recommendations that the father attend parenting classes, have drug screens, and maintain stable housing and employment.

Boswell testified that the father had completed parenting classes and had maintained stable employment at a pizza restaurant. She testified, however, that the father had declined to complete anger-management or domestic-violence classes and had also not completed the in-home parenting services. She testified that the father did not think that he needed the anger-management or domestic-violence classes, although, she said, there was evidence indicating that the father had hit the mother during their marriage and had yelled at Boswell and one of the in-home services workers.

The father and the mother had separated before the termination-of-parental-rights trial. Boswell testified that, for at least six months preceding the trial, the father had lived in a room in a house that he had been subleasing from the tenants of the house. She testified that the father was paying rent of $100 per week. Boswell testified that the father's plan was for the child to share a bedroom with the minor daughter of the tenants of the house. She testified that DHR had no safety concerns regarding the house at which the father was living but that DHR was concerned because the father's name is not on the lease of the house.

Boswell testified that the father had consistently visited the child and had bought some gifts for the child, but, she said, he had not paid any monetary support for the child. Destiny Love, a clinical therapist with the in-home parenting-services provider, testified that the father had told her that the mother had prevented him from completing the in-home parenting services and that he had expressed interest in resuming those services.

"This court has held that evidence of current conditions or conduct relating to a parent's ability or willingness to care for his or her children is implicit in the requirement that termination of parental rights be based on clear and convincing evidence." Bowman v. State Dep't of Human Res., 534 So.2d 304, 306 (Ala. Civ. App. 1988). In the present case, the evidence of the father's current conditions and conduct at the time of the trial was that he had separated from the mother, had maintained stable employment, had maintained safe housing, had completed parenting classes, and had maintained visits with the child. The father had also indicated a willingness to resume in-home parenting services. Although the father had declined to complete anger-management and domestic-violence classes, there was no indication that the father had ever acted in anger or been violent toward the child. Considering the father's current circumstances, I cannot conclude that the juvenile court was presented with clear and convincing evidence indicating that the father is "unable or unwilling to discharge [his] responsibilities to and for the child, or that the conduct or condition of the [father] renders [him] unable to properly care for the child and that the conduct or condition is unlikely to change in the foreseeable future." § 12-15-319(a).

In D.O. v. Calhoun County Department of Human Resources, 859 So.2d 439, 444 (Ala. Civ. App. 2003), this court reasoned that, when there was evidence indicating that the parent had "made a continuing effort to change her circumstances and that she was making significant progress at the time of the termination hearings," the judgment terminating her parental rights was premature and, therefore, was "plainly and palpably wrong." Similarly, in the present case, the father had made continuing and consistent efforts to change his circumstances and was making significant progress at the time of the trial.

" '[T]he termination of parental rights is a drastic measure, and we know of no means by which those rights, once terminated, can be reinstated. The evidence in [this case] "does not rise to the level of being so clear and convincing as to support termination of the parental rights of the [father], such action being the last and most extreme disposition permitted by statute." ' "

D.O., 859 So.2d at 445 (quoting V.M. v. State Dep't of Human Res., 710 So.2d 915, 921 (Ala. Civ. App. 1998), quoting in turn East v. Meadows, 529 So.2d 1010, 1012 (Ala. Civ. App. 1988) ).

Based on the foregoing, I conclude that the juvenile court's judgment terminating the father's parental rights is not supported by clear and convincing evidence, and, therefore, I would reverse the juvenile court's judgment.


author: WINDOM, Presiding Judge.

text:
    Christian Anthony LEGENDRE v. STATE of Alabama
    CR-16-0008
    Court of Criminal Appeals of Alabama.
    March 17, 2017 Rehearing Denied May 26, 2017 Certiorari Denied July 7, 2017
    Alabama Supreme Court 1160795
    James Leighton Nation, Huntsville, for appellant.
    Luther Strange, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.
   WINDOM, Presiding Judge.

Christian Anthony Legendre appeals the revocation of his probation by the Madison Circuit Court. Legendre was originally convicted of second-degree burglary, a violation of § 13A-7-6, Ala. Code 1975, and was sentenced to five years in prison. Legendre's sentence was split to time served, followed by three years of supervised probation.

On July 21, 2016, Legendre's probation officer filed a delinquency report alleging that Legendre had violated the terms and conditions of his probation: 1) by failing to report; 2) by leaving the State without permission; 3) by failing to pay supervision fees; 4) by failing to pay court-ordered moneys; 5) by failing to report to a court-referral officer; and 6) by failing to complete a court-ordered substance-abuse program. On August 10, 2016, the circuit court held an initial appearance, at which Legendre denied the allegations against him. On August 24, 2016, the circuit court held a probation-revocation hearing.

Rachel Murrill, Legendre's probation officer, was the sole witness at the hearing. Murrill testified that she had presented Legendre with an order of probation that informed him of his responsibilities while on probation and that she and Legendre had signed the order. Murrill then testified to a number of alleged violations. Specifically, Murrill stated that Legendre had contacted her to inform her that he recently had been released from incarceration following a 45-day "dunk," which had been imposed as a result of a previous probation violation. Murrill and Legendre scheduled a meeting for the next day, May 13, 2016.

Legendre, however, did not appear at the meeting.

Murrill attempted to contact Legendre through all of his known telephone numbers but was unsuccessful. In July 2016, Murrill learned from another officer that Legendre was suspected of stealing a vehicle in Florida. During a telephone conversation with the Florida victim, Murrill was told Murrill that Legendre had traveled to Florida to visit her daughter. According to the victim, Legendre lived at her house in Florida without permission for two weeks and stole her vehicle. Murrill received a letter from the victim detailing Legendre's presence in Florida, which the circuit court received into evidence. Murrill was finally able to locate Legendre following his arrest on July 19, 2016, in Arab, Alabama, based on outstanding traffic tickets.

Murrill also testified that Legendre had failed to make any payments toward his court-ordered moneys or his supervision fees and that Legendre had failed to comply with court orders to report to a court-referral officer and to complete a substance-abuse program.

Following the hearing, the circuit court found that it was reasonably satisfied that Legendre had violated his probation by failing to report; by failing to report to a court-referral officer; and by failing to complete a court-ordered substance-abuse program. The circuit court revoked Legendre's probation after finding that Legendre's "failure to report went to the extent that he would be labeled as an absconder." (R. 15.)

On appeal, Legendre argues that the evidence was insufficient to revoke his probation. Section 15-22-54(e)(1), Ala. Code 1975, states, in pertinent part:

"[W]hen a defendant under supervision for a felony conviction has violated a condition of probation, other than arrest or conviction of a new offense or absconding, the court may impose a period of confinement of no more than 45 consecutive days to be served in the custody population of the Department of Corrections."

(Emphasis added.) Legendre argues that aside from Murrill's attempts to contact him by telephone, the State failed to offer evidence regarding its efforts to locate him and that the only evidence offered that he left the state was hearsay. Thus, Legendre argues, the State failed to offer sufficient evidence that he was an "absconder," and the circuit court abused its discretion in revoking his probation.

An alleged violation of probation need not be proven beyond a reasonable doubt; instead, the trial court need only be "reasonably satisfied from the evidence that the probationer has violated the conditions of his probation." Armstrong v. State, 294 Ala. 100, 103, 312 So.2d 620, 623 (1975). Here, ore tenus evidence was presented to the circuit court. In such cases, a presumption of correctness is afforded the court's judgment. Smiley v. State, 52 So.3d 565, 568 (Ala. 2010).

Title 15 of the Alabama Code does not define "absconding." The Alabama Supreme Court has instructed that,

"when a term is not defined in a statute, the commonly accepted definition of the term should be applied. Republic Steel Corp. v. Horn, 268 Ala. 279, 281, 105 So.2d 446, 447 (1958). Furthermore, we must give the words in a statute their plain, ordinary, and commonly understood meaning, and where plain language is used we must interpret it to mean exactly what it says. Ex parte Shelby County Health Care Auth., 850 So.2d 332 (Ala. 2002)."

Bean Dredging, L.L.C. v. Alabama Dep't of Revenue, 855 So.2d 513, 517 (Ala. 2003).

Black's Law Dictionary defines "abscond" as "[t]o depart secretly or suddenly, esp. to avoid arrest, prosecution, or service of process; to conceal oneself." Black's Law Dictionary 6 (10th ed. 2009) (Emphasis added.) The Texas Court of Criminal Appeals in Manley v. State, 633 S.W.2d 881 (Tex. Crim. App. 1982), stated:

"Abscond is defined in 1 C.J.S. 349 as:
" 'To absent one's self clandestinely; to absent or withdraw one's self privately; to conceal one's self clandestinely with intent to avoid legal process; to go in a clandestine manner out of the jurisdiction of the court; to lie concealed in order to avoid process of the court; and means something more than a temporary absence.'
"Webster's Third New International Dictionary, p. 6, gives the following definition for abscond: 'Withdraw, flee; to depart secretly; withdraw and hide oneself; to evade the legal process of a court by hiding within or secretly leaving its jurisdiction.' "

Manley, 633 S.W.2d at 882. Similarly, the Oregon Court of Appeals has recognized:

" 'In determining whether a defendant has absconded from supervision, appellate courts must consider whether the defendant's acts show the intent that inheres in the definition of "abscond"-not simply that the defendant failed to attend one meeting with a probation officer or could not be located for a brief period of time, but that the defendant sought to "evade the legal process of a court by hiding within or secretly leaving its jurisdiction." [Webster's Third New Int'l Dictionary 6 (unabridged ed. 2002).] Moreover, as our prior cases reflect, the "legal process" sought to be evaded may include compliance with the terms of one's sentence, including the defendant's conduct in "mak[ing] himself available for probation." [ State v.] Smith, 312 Or. 561, 564, 822 P.2d 1193 (1992).'
"[ State v. Robbins, 345 Or. 28, 33, 188 P.3d 262 (2008) ] (second brackets in Robbins )."

State v. Hooper, 278 Or.App. 246, 248-49, 373 P.3d 1272, 1273-74 (2016).

Legendre appears to suggest that, in order to prove that he absconded, the State was required to offer substantive evidence that he left the jurisdiction of the circuit court. On the contrary, to abscond requires only the concealment of oneself, especially in instances of evading legal process. Here, Murrill offered evidence indicating that Legendre had signed a form informing him of the terms and conditions of his probation. Additionally, Murrill stated that Legendre contacted her following his release and that they had arranged for a meeting the following day. In other words, Legendre clearly had notice of his obligation to report to Murrill and of the scheduled meeting. See Hooper, 278 Or.App. at 249, 373 P.3d at 1274 (citing the appellant's notice of his obligations as evidence of his intent to abscond). Even so, Legendre failed to report to his scheduled meeting, and, significantly, Legendre did not attempt to remedy his failure. In fact, in spite of Murrill's efforts to contact Legendre, two months passed before Murrill was able to locate Legendre, and Murrill was able to locate him only as a result of Legendre's arrest in Arab. Based on this evidence, the circuit court could have been reasonably satisfied that Legendre had absconded. See Giffin v. City of Florence, 677 So.2d 1280, 1284 (Ala. Crim. App. 1996) (recognizing that intent, being a state of mind, is rarely susceptible to direct proof and may be inferred by the finder of fact from the evidence presented (quoting Hall v. State, 348 So.2d 870, 873 (Ala. Crim. App. 1977) )). As such, the circuit court did not abuse its discretion in revoking Legendre's probation.

Accordingly, the judgment of the circuit court is affirmed.

AFFIRMED.

Welch, Kellum, Burke, and Joiner, JJ., concur.