author: DONALDSON, Judge. THOMAS, Judge, dissenting.

text:
    Michael Keith BARDOLF v. Lynnette Bosse BARDOLF
    2161041
    Court of Civil Appeals of Alabama.
    April 6, 2018 Rehearing Denied May 18, 2018 Certiorari Denied August 24, 2018
    Alabama Supreme Court 1170806
    Melissa Isaak and Davy M. Hay of The Isaak Law Firm, Montgomery, for appellant.
    Gary D. Bradshaw, Enterprise, for appellee.
   DONALDSON, Judge.

Michael Keith Bardolf ("the father") appeals from a judgment entered by the Coffee Circuit Court ("the trial court") denying his petition seeking to modify custody of the two daughters ("the children") of Lynnette Bosse Bardolf ("the mother") and the father. We affirm the judgment.

Facts and Procedural History

In November 2013, the trial court entered a judgment in case no. DR-12-900020 that, among other things, divorced the parties, granted the mother sole physical custody of the children, granted the father "liberal" visitation with the children, and ordered the father to pay child support ("the divorce judgment"). In the divorce judgment, the trial court described the different types of custody that are contained in § 30-3-151, Ala. Code 1975, including specific descriptions of joint physical custody and sole physical custody. The trial court noted that both parties are "fit and proper parents" but that, based upon circumstances surrounding the mother's transfer of her military employment from Alabama to Oklahoma, it would be in the children's best interest for the mother to have sole physical custody.

On January 8, 2015, in case no. DR-12-900020.01, the trial court entered the first judgment modifying the parties' divorce judgment ("the first modification judgment"), which incorporated a November 2014 agreement of the parties. In that judgment, the trial court noted that the November 2014 agreement was reached following mediation that was ordered after the father filed a complaint seeking to "modify the divorce decree with regard to custody of the parties' minor children." The agreement states that both the mother and the father were represented by separate counsel in executing the agreement and that both the mother and the father "have read, understood, and agreed to the provisions of this instrument and have been fully informed of their rights" before signing the agreement. The parties' November 2014 agreement addressed in detail what the parties described as modifications to "visitation" with the children; in particular, it provided that, from January 2015 until May 2015, the father was granted, each month, week-long visitation with the children in Oklahoma, that each party was granted 28 days with the children in the summer, and that, beginning in August 2015 when the mother and children returned to Alabama, the parties agreed to "split weekdays" and alternate weekends with the children. The parties also agreed to terminate the father's child-support obligation beginning in June 2015, noting the revised custodial periods. Neither the agreement nor the first modification judgment addressed the physical custody of the children or the mother's status as sole physical custodian of the children.

On April 12, 2016, in case no. DR-12-900020.02, the trial court entered another judgment ("the second modification judgment") in proceedings the father had initiated by filing a petition for contempt and "modification of visitation." Like the first modification judgment, the second modification judgment incorporated a settlement agreement entered into by the parties that reflects that the mother and the father were represented by separate counsel in executing the agreement. The second modification judgment also contained what the parties described as a revised "visitation schedule" but, again, omitted any mention of the physical custody of the children. The second modification judgment provided "[t]hat all other agreed-upon and decided matters in the Final Decree [of Divorce] and Joint Stipulation Agreement remain in effect as laid out in those documents."

On September 27, 2016, the father filed a petition in the trial court in case no. DR-12-900020.03 ("the .03 action") seeking, among other things, "primary physical custody" of the children. The mother filed an answer and a counterclaim requesting, among other things, an award of "primary physical and legal custody" of the children.

On March 28, 2017, the trial court held a trial. M.R.B., the parties' 16-year-old daughter, testified that she would like the father to have "full custody" of her and her sister, asserting that the father is more able to care for their medical and educational needs. She also asserted that there was frequent fighting and verbal abuse at the mother's house. M.R.B. opined that she was old enough to make important life decisions for herself. M.R.B. testified that she is more comfortable talking with the father because she believes that "he's not going to go against what I decide." M.R.B. testified that the father had been more involved in her education, that he had signed her up for an ACT college-entrance-exam preparation course, and that he had taken her on two college visits. M.R.B. admitted, however, that she had declined the mother's request to attend the college visits. M.R.B. also testified that the mother "belittles" the father and tells the children that the father is using parental alienation to drive a wedge between the mother and the children.

R.E.B., the parties' 14-year-old daughter, testified that she and her sister had asked the father to seek sole physical custody "[b]ecause we want, like, more freedom, like, for us to go, like, back and forth, and the medical stuff to be on him." According to R.E.B., there is more fighting at the mother's house and it is "more peaceful" at the father's house. R.E.B. testified that her relationship with the mother began deteriorating the night before they moved to Oklahoma in 2013.

L.S., the 17-year-old boyfriend of M.R.B., testified that he had often observed tension at the mother's house and opined that the children should live with the father.

The father testified that the children had approached him about requesting a change of custody. The father asserted that he has "watched [the children] come home, after being with their mom for a week, and spend a day and a half and all [he] can do is try to calm them down and let them decompress." The father testified that the mother had had final decision-making authority related to the children for the past five years and that he would like to have that authority. The father testified that he and the mother cannot effectively co-parent. The father testified that he had rules that he enforced with the children. When asked about R.E.B.'s multiple absences from school while in the father's care over the past seven months, the father testified that he had let the children miss school on occasions when he knew they would not be productive or when they needed to catch up on studying.

The father testified that, when she declines one of the children's requests, the mother often says "no" and responds with "[b]ecause I'm the parent," while, he said, he "take[s] the extra time to teach a lesson." The father opined that a custody modification "is the best way, unfortunately the only way left, for hopefully one day the girls to have a positive and healthy relationship with their mother."

The mother testified that she had had a difficult time co-parenting with the father. The mother opined that the father does not impose and enforce appropriate rules for the children. The mother testified that the children are often defiant, disobedient, and disrespectful, and she asserted that the father "encourages them and empowers them to be disobedient" and that he "doesn't do anything to discourage their behavior when those situations arise." A friend of the mother's also testified that she had witnessed both children be "very disrespectful" to the mother in public settings.

The mother testified that she generally does not call the children names and that she does not normally yell at them, unless they are being continually disrespectful. The mother testified that she loves and cares for the children. The mother admitted that she is "hard" on the children because she is trying to teach them how to be productive women in society. The mother believes that she and the children are facing a "natural conflict between a mother and a daughter at this age."

On August 10, 2017, following a trial, the trial court entered a judgment in the .03 action that provides, in pertinent part:

"The court taking judicial notice of its prior Judgments finds that in the original Judgment of Divorce the Mother and Father were awarded joint legal custody of the children and the Mother was awarded sole physical custody. The Father was awarded extensive visitation based upon distance of the parties at the time. On January 8, 2015, in a pending action, the court entered a Judgment modifying visitation by adopting and incorporating a Stipulation and Agreement of the parties. The agreement did not modify the Mother's award of sole physical custody. On April 12, 2016, the court in another Complaint to Modify adopted and incorporated into its Final Judgment the agreement of the parties as to visitation. The agreement stated 'That all other agreed upon and decided matters in the Final Decree [of Divorce] and Joint Stipulation Agreement remain in effect as laid [out] in [those] documents.' The agreement adjudged on April 12, 2016, did not modify custody.
"This custody modification action involves two (2) female minor children [M.R.B.], d/o/b July 13, 2000 (age 17), and [R.E.B.], d/o/b January 13, 2003 (age 14).
"Based on the prior Judgment awarding the Mother sole physical custody of the minor children the standard set out in Ex parte McLendon, 455 So.2d 863 (Ala. 1984), shall apply. To justify a modification of child custody of a preexisting Judgment, the Petitioner must demonstrate that there has been a material change of circumstances since the Judgment was entered and it is in the best interest of the child that custody be modified in that the change of custody will materially promote the child's welfare and the change of custody would outweigh any disruptive effect of the change of custody.
"The evidence and testimony in this case reveals at most a strained relationship between the two (2) teenage minor girls and their Mother who is ... retired from the United States Army. The evidence further reveals that the strained relationship arises due to the two (2) minor children are not ... pleased with the rules and discipline methods of the Mother. The evidence reveals that the minor children, since the move from Oklahoma back to Enterprise, spend almost equal time with both parents pursuant to the agreement of the Mother and Father. The evidence and testimony reveals that the Father does not seek to communicate with the Mother regarding the education and welfare of the children. Joint legal custody means that both parents have equal rights and responsibilities for major decisions concerning the children, including, but not limited to, the education, health care, and religious training of the children. The evidence reveals that the Father has taken the oldest child on college visits without communicating with the Mother. The evidence reveals ... the youngest child had ten (10) unexcused school absences in a seven (7) month period during the time [she] was with her Father. The testimony was that if she is not feeling good her dad does not make her go to school. [The youngest child] feels more freedom at Father's house. The evidence revealed that both parents have allowed extra ... visitation with the other parent. There has been evidence of the children refusing to abide by the visitation schedule and the Father not encouraging support for enforcement.
"CONCLUSION
"The court finds that there is a material change in circumstances based on the strained relationship between the two (2) minor children and the Mother.
The evidence does not support [a finding] that a change of custody would promote the welfare and be in the best interest of the minor children. The co-parenting of joint legal custody with both parents having frequent and continuing control with the minor children is working. No parenting situation involving parents and children will ever be perfect. The minor children are making good grades in school. It appears at times the parents want what is in their best interest and not what is in the best interest of the children. Both parents have different parenting methods and skills that may always create issues; however, these are the same issues that would arise if the parents were still married to each other. The testimony clearly revealed that both the Mother and Father are good parents and that neither would make decisions with a purpose to harm the children.
"The Mother and Father should be thankful that they have raised such healthy, educated and well-rounded children and both should continue to work together to provide stable, loving, safe and secure environment for the children."

The trial court denied the father's petition to modify custody and the mother's counterclaim seeking a modification of custody. The father timely filed a notice of appeal to this court on September 1, 2017.

Discussion

The father first argues that the trial court incorrectly applied the standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala. 1984), rather than the standard set forth in Ex parte Couch, 521 So.2d 987 (Ala. 1988), to the issue of modification of custody. The determination of whether the trial court applied the correct modification standard is a question of law, which this court reviews de novo. See Ex parte Perkins, 646 So.2d 46, 47 (Ala. 1994).

"If one parent has previously been granted primary physical custody ..., then an existing custody arrangement will be modified only if the modification materially promotes the best interests and welfare of the child. Ex parte McLendon, 455 So.2d 863, 865-66 (Ala. 1984)." Ex parte Johnson, 673 So.2d 410, 413 (Ala. 1994).

The father argues that, although the divorce judgment granted the mother sole physical custody of the children, the subsequent modification judgments modified physical custody of the children and, as a result, the parties ultimately shared equal time with the children on an alternating weekly basis. The father also asserts that "the sole physical custody designation in previous orders did not accurately reflect the true nature of the parties' practiced custodial arrangement." In support of his argument, the father cites New v. McCullar, 955 So.2d 431, 436 (Ala. Civ. App. 2006), and E.F.B. v. L.S.T., 157 So.3d 917 (Ala. Civ. App. 2014).

In New v. McCullar, a father sought a modification of a judgment that had designated the mother and the father as having "joint physical custody" of a child. The judgment also had designated the child's primary residence to be with the mother. 955 So.2d at 432. The trial court applied the McLendon standard, apparently based in part on its finding that the mother had the child in her custody for a majority of the time each month. This court held that "the express declaration that the parties were awarded joint physical custody" was not affected by the designation of a primary residence in the judgment, that the length of time the child had been with the mother was not "material," and that the McLendon standard was inapplicable because the parties had shared joint physical custody. Id. at 435-36. Likewise, in E.F.B. v. L.S.T. , a father sought to modify a judgment that had designated the mother and the father as having joint physical custody but that also had designated the father as being the primary physical custodian. Following New, this court held that, because the parties had been designated by the court as having joint physical custody, Ex parte McLendon did not apply to the modification proceedings. E.F.B., 157 So.3d at 923.

Unlike the judgments sought to be modified in New and E.F.B., the divorce judgment of the parties in this case directly and unequivocally granted physical custody to one party-the mother. The parties' November 2014 agreement that was incorporated into the first modification judgment addressed in detail what the parties described as modifications to "visitation" with the children and also addressed issues of child support, health insurance, and the exchange of quitclaim deeds to certain properties, but it did not address physical custody of the children. Further, the first modification judgment states that "[a]ll other relief not addressed ... is denied." The second modification judgment, entered on April 12, 2016, also incorporated the parties' agreement that, like the previous agreement, contained what the parties described as a revised "visitation schedule," but, once again, omitted any mention of the physical custody of the children. The agreement stated that "all other agreed-upon and decided matters in the [Final Decree [of Divorce] and Joint Stipulation Agreement remain in effect as laid out in those documents."

Although the two modification judgments enlarged the father's visitation with the children to an amount equal with the mother's custodial periods, the parties did not choose to submit any modification of physical custody to the trial court for approval. Accordingly, the designation of the physical custodian of the children had not changed since the entry of the divorce judgment, and the trial court correctly applied the McLendon standard to the father's modification request.

"The custody-modification standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala. 1984), 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."

Walker v. Lanier, 180 So.3d 39, 42 (Ala. Civ. App. 2015). Furthermore, because the trial court entered its judgment after a trial, the ore tenus standard of review applies.

" ' "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)." ' "

Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala. 1996) (quoting Ex parte Perkins, 646 So.2d 46, 47 (Ala. 1994), quoting in turn Phillips v. Phillips, 622 So.2d 410, 412 (Ala. Civ. App. 1993) ).

The father argues that he presented sufficient evidence to overcome the stringent McLendon standard. As explained above, the trial court found that, although the strained relationship between the mother and the children constituted a material change in circumstances, the evidence did not demonstrate that a change of custody would promote the welfare and be in the best interest of the children. The trial court specifically found that the parents employed different parenting styles that could potentially create issues but that the children were doing well having frequent contact with both parents.

The father points to the children's testimony indicating that the mother frequently raises her voice and directs harsh and abusive language toward the children. The mother testified that she had, on occasion, raised her voice when the children were continually disobedient or disrespectful but that she did not generally do so. The credibility of the testimony and the weight to be given to testimony found to be credible were matters for the trial court to determine after personally observing the witnesses. See Dunn v. Dunn, 972 So.2d 810, 815 (Ala. Civ. App. 2007) (explaining that the trial court is in the best position to evaluate a witness's demeanor and credibility).

The father also points to the children's testimony that they wanted to live with the father and that they wished to have time away from the mother to allow them to repair their relationship with the mother. Although "a trial court can and should consider the wishes of a child involved in a custody dispute as one of a myriad of factors when making its decision[,] the child's wishes are ... not determinative of the issue." C.E. v. C.C.H., 922 So.2d 934, 937 (Ala. Civ. App. 2005). The mother testified that she loves and cares for the children and that, because of their ages, they are facing a natural conflict that occurs between mothers and teenage daughters. The mother also testified that the father encourages and empowers the children to disobey and disrespect her. The trial court could have believed the mother's testimony and, as a result, could have determined that placing the children in the father's sole physical custody would only further strain the relationship between the mother and the children and that a change of custody would not "materially promote[ ]" the children's "best interest and welfare." McLendon, 455 So.2d at 866.

The trial court had the opportunity to witness the mother, the father, and both children testify, and the ore tenus "presumption is based on the trial court's unique position to directly observe the witnesses and to assess their demeanor and credibility. This opportunity to observe witnesses is especially important in child-custody cases." Ex parte Fann, 810 So.2d 631, 633 (Ala. 2001). The trial court correctly applied the McLendon standard, and its detailed findings are supported by evidence presented that the trial court could have found to be credible. Therefore, we affirm the trial court's judgment.

AFFIRMED.

Pittman and Moore, JJ., concur.

Thomas, J., dissents, with writing, which Thompson, P.J., joins.

THOMAS, Judge, dissenting.

I respectfully dissent because I believe that today's decision is in direct conflict with New v. McCullar, 955 So.2d 431 (Ala. Civ. App. 2006) ; and E.F.B. v. L.S.T., 157 So.3d 917 (Ala. Civ. App. 2014). See Rule 39(a)(1)(D), Ala. R. App. P.

Michael Keith Bardolf ("the father") and Lynnette Bosse Bardolf ("the mother") are the divorced parents of two daughters ("the children"). On appeal, the father first argues that the Coffee Circuit Court erred by applying the custody-modification standard set out in Ex parte McLendon, 455 So.2d 863 (Ala. 1984) ("the McLendon standard"), rather than the best-interest standard set out in Ex parte Couch, 521 So.2d 987, 989 (Ala. 1988). In both New and E.F.B., this court determined that the McLendon standard did not apply to custody situations that are, in my opinion, similar to the one before us. Indeed, although referred to as a modification of visitation rather than a modification of custody, the judgments entered in the previous modification actions-case no. DR-12-900020.01 ("the .01 action") and case no. DR-12-900020.02 ("the .02 action")-resulted in the parents' sharing approximately equal custodial periods for more than two years.

In E.F.B., we explained:

"In New v. McCullar, 955 So.2d 431, 435-36 (Ala. Civ. App. 2006), this court determined that the McLendon standard did not apply to a judgment like the one before us in this case. This court stated:
" 'The central question in this case is which standard- McLendon or Couch-should be applied. If the divorce judgment awarded primary or sole physical custody to the mother, the McLendon standard applies. If the divorce judgment awarded joint physical custody, the best-interests standard of Couch applies. In this case, we conclude that the trial court incorrectly required the father to meet the McLendon standard in order to obtain a modification of the divorce judgment as it relates to custody.
" 'We begin our analysis with Alabama's joint-custody statute, Ala. Code 1975, §§ 30-3-150 through -157. Section 30-3-151(3) defines "joint physical custody" as
" ' "[p]hysical custody ... shared by the parents in a way that assures the child frequent and substantial contact with each parent. Joint physical custody does not necessarily mean physical custody of equal durations of time."
" 'The custody arrangement set forth in the parties' agreement and incorporated into the divorce judgment fits within this statutory definition of "joint physical custody." The agreement provided that the parties would share "joint legal and joint physical custody" of the child. The judgment provided for the child to reside with the father almost one half of every month during the school year and approximately one half of each summer. It also provided that the child would spend approximately one half of certain designated holiday periods with the father. That arrangement clearly "assures the child frequent and substantial contact with each parent." § 30-3-151(3).
" 'The evidence in the record also shows that both parties in fact had frequent and substantial contact with the child; both parties lived in the same part of Baldwin County, and the father frequently took the child to, or picked him up from, school and various activities. There is also evidence in the record indicating that the child frequently stayed overnight with the father and that both parties were involved with the child's school and extracurricular activities.
" 'In light of the foregoing factors, we do not consider it material that the mother had custody for a majority of the time each month. The statute does not require equal durations of time, and we have previously determined that the allocation to one parent of approximately 50 more days of physical custody per year did not constitute a custodial preference so as to warrant the application of the McLendon standard. Rehfeld v. Roth, 885 So.2d 791 (Ala. Civ. App. 2004). See also Reuter v. Neese, 586 So.2d 232 (Ala. Civ. App. 1991) ( Couch standard applied to an arrangement under which one parent had primary custody during the school year and the other parent had primary custody during the summer).
" 'Similarly, under the circumstances of this case, we do not find that the express declaration that the parties were awarded joint physical custody was contradicted by the statement in the divorce judgment that "the child's primary residence shall be with [the mother]" or by the references to the father's "visitation." To the extent that the divorce judgment is internally inconsistent, we conclude that it in fact created a joint-physical-custody arrangement, as defined by § 30-3-151(3).'
"(Footnotes omitted.)"

157 So.3d at 922-23 (emphasis added).

The judgments entered in the previous modification actions fail to use the custody terminology chosen by our legislature. Regardless, an express provision of the judgment in the .01 action reads: "Starting on August 1st of 2015, the parties shall have physical custody of the minor children," and, thereafter, the parties shared alternating weekly custody for two years, which, according to prior opinions of this court, amounts to "a joint-physical-custody arrangement, as defined by § 30-3-151(3)." New, 955 So.2d at 436 ; E.F.B., 157 So.3d at 923. The award of "physical custody" to the parties altered the earlier award designating the mother as the "primary" physical custodian; therefore, unlike the main opinion, I conclude that, like in New and E.F.B., the McLendon standard has no application in this case.

"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. Ex parte 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).

I would reverse the judgment and remand the cause to the trial court, instructing it to apply the proper standard to the father's petition to modify custody. See Rehfeld v. Roth, 885 So.2d 791, 796 (Ala. Civ. App. 2004) (explaining that, when a trial court erroneously applies the more stringent standard and denies a modification, the proper approach is to reverse the judgment and remand the cause for the trial court to apply the proper standard); and Davis v. Davis, 753 So.2d 513, 515 (Ala. Civ. App. 1999). In light of the foregoing, I would pretermit the father's other arguments. See Favorite Mkt. Store v. Waldrop, 924 So.2d 719, 723 (Ala. Civ. App. 2005).

Thompson, P.J., concurs.


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    R.D.F. v. R.J.F.
    2170013
    Court of Civil Appeals of Alabama.
    August 10, 2018
    Joan-Marie Sullivan, Huntsville, for appellant.
    Robert V. Goldsmith of Caine | Goldsmith, Moulton, for appellee.
   THOMAS, Judge.

R.D.F. ("the father") and R.J.F. ("the mother") are the parents of four children: N.F., Jon.F., A.F., and Jos.F. The parties were divorced in 2013; the divorce judgment awarded sole custody of the oldest child, N.F., to the father, awarded the mother visitation with N.F., awarded joint custody of the three younger children to the parents, and required the father to pay child support to the mother; the mother's custodial periods with all four children are quite similar to standard visitation, i.e., every other weekend and alternating Tuesday and Thursday evenings. In July 2015, the mother filed a verified complaint in the Morgan Circuit Court ("the trial court") in which she sought to have the father held in contempt and sought to modify her custodial periods with the children. The father answered the mother's complaint and counterclaimed, seeking to reduce the mother's custodial periods with N.F. by 1 day each custodial weekend and with the younger children by 30 minutes on those Sundays that the mother exercised her custodial periods; the father also sought the termination of his obligation to pay child support to the mother. In December 2015, the father moved to suspend the mother's overnight custodial periods with N.F. and to reduce the mother's daytime custodial periods with N.F. to one-half day. Although the trial court held a hearing on the father's motion in February 2016, it did not address the motion until its issuance of the final judgment.

The trial commenced on June 14, 2016, and continued through June 17, 2016; however, the trial was not completed until October 28, 2016. The trial court entered a judgment on May 9, 2017, in which it held the father in contempt for certain actions, modified custody by awarding the mother sole legal and sole physical custody of all four children, and ordered the father to pay child support in accordance with Rule 32, Ala. R. Jud. Admin. The father filed a postjudgment motion, which was denied by operation of law, see Rule 59.1, Ala. R. Civ. P. (providing that the failure to render an order on a postjudgment motion within 90 days after its filing results in the automatic denial of the motion), and then filed a timely appeal. On appeal, the father challenges the modification of custody and the award of child support.

The father first argues that the trial court lacked the authority to modify custody of the children because, he says, the mother sought only an increase in her custodial periods and, therefore, he asserts, he did not have notice that the trial court would consider a full modification of the existing custody arrangement. In her complaint, the mother sought a change to the parties' custodial arrangement, requesting additional time with the children, and utilized language closely mirroring that found in Ex parte McLendon, 455 So.2d 863, 865-66 (Ala. 1984) (quoting Wood v. Wood, 333 So.2d 826, 828 (Ala. Civ. App. 1976) ), regarding the burden for a change in custody; in his counterclaim, the father sought to reduce the mother's custodial periods with all the children, but especially with N.F. However, at trial, the mother testified that she was asking the trial court to "flip the schedule" or "to give [her] what [the father] now has and give him what [the mother has]."

The father's attorney objected to the mother's testimony, stating that the mother had asked for only "additional custodial time," not a modification of custody. The mother's attorney indicated that he did not think that the mother had been required to state in her pleadings what the exact custodial arrangement should be, and the trial court agreed, indicating that the mother could testify about what custodial arrangement she thought would be best for the children. The mother stated that she was not seeking sole physical custody, but, when questioned a second time about what she desired, the mother again testified, this time without objection, that she wanted the trial court to "flip the custody" and that she was "asking for more custodial time." In addition, the children's guardian ad litem filed her report before the beginning of the trial in this matter; her recommendation was to award sole physical custody of the children to the mother, indicating that the guardian ad litem was aware that the parties were litigating the proper custodial arrangement for the children. Notably, although his counsel cross-examined the guardian ad litem about the report at the close of the trial, the father did not object to the admission of the guardian ad litem's report or her testimony indicating that she recommended a modification of custody.

"It has been said by the Supreme Court of this state that in a custody proceeding the court 'does not proceed upon the theory that the petitioner, whether father or mother, has a cause of action against the other, or indeed against anyone. [The court] acts as parens patriae to do what is best for the interest of the child. [The court] is not adjudicating a controversy between adversary parties, to compose their private differences. [The court] is not determining rights as between a parent and child, or as between one parent and another.' Cleckley v. Cleckley, 250 Ala. 78, 33 So.2d 338[ (1948] ) ; Ex parte White, 245 Ala. 212, 16 So.2d 500 [ (1944] ). Any matter affecting the rights, interests or welfare of the ward is within the peculiar jurisdiction and discretion of the court. Stephens v. Stephens, 253 Ala. 315, 45 So.2d 153 [ (1950] )."

Leigh v. Aiken, 54 Ala. App. 620, 623, 311 So.2d 444, 447 (Civ. App. 1975).

In addition, our supreme court has explained:

"The circuit court's jurisdiction to [decide custody] is derived from the principles of equity; where a child is physically present within the jurisdiction of a circuit court in this state, the court has inherent authority to act to protect the welfare and best interests of the child. [ Ex parte] Handley [, 460 So.2d 167 (Ala. 1984] ). A party need not specifically invoke the circuit court's inherent jurisdiction; rather, any pleading showing on its face that the welfare of a child requires an order with respect to its custody and support is sufficient to invoke the jurisdiction of the circuit court to settle the matter. Handley. Once the circuit court's jurisdiction is thus invoked, any matter affecting a child may become the subject of its adjudication. Handley."

Ex parte Lipscomb, 660 So.2d 986, 989 (Ala. 1994).

Furthermore, Ala. Code 1975, § 30-3-152(a), requires that a trial court tasked with determining the custody of a child consider joint custody but specifically states that a trial court "may award any form of custody which is determined to be in the best interest of the child." A review of the record indicates that most of the evidence presented concerned the respective parenting abilities of the parties and what amount of parenting time each party should have. Based on the foregoing authorities, we conclude that the question of what custody arrangement would serve the best interest of the children was litigated by the parties, and we find no basis for a conclusion that the trial court exceeded its authority or proceeded to modify custody without notice to the father that a modification of custody was requested.

A parent seeking modification of any type of custody arrangement must show a material change of circumstances giving rise to a need for a change of custody. Watters v. Watters, 918 So.2d 913, 916 (Ala. Civ. App. 2005) ; Means v. Means, 512 So.2d 1386, 1388 (Ala. Civ. App. 1987). A material change of circumstances is a change in the circumstances of the parties " 'such as to affect the welfare and best interest of the child or children involved.' " Watters, 918 So.2d at 916 (quoting Ponder v. Ponder, 50 Ala. App. 27, 30, 276 So.2d 613, 615 (Civ. App. 1973) ). The alleged material changes must "affect [ ] the best interest and welfare of the child such that a change in the existing custodial arrangement [is] warranted," and mere tangential effects on the child are not sufficient to make changes in circumstances material. Watters, 918 So.2d at 916.

We note that, in this case, the parties shared joint custody of the three younger children but that the father had sole custody of N.F. Thus, the trial court was required to apply different standards to the custody modification sought by the mother. Regarding N.F., the mother was required to present evidence indicating that a change in N.F.'s custody would materially promote his welfare. See Ex parte McLendon, 455 So.2d at 866-67. Of course, a parent seeking modification of a joint-custody arrangement is not required to meet the standard set out in Ex parte McLendon. See Watters, 918 So.2d at 916 ; Means, 512 So.2d at 1388. Thus, the mother was not required to show that the three younger children's best interest would be materially promoted by a change in custody but only that a modification of custody would serve their best interest. See Ex parte Couch, 521 So.2d 987 (Ala. 1988).

Finally, we note that it is beyond settled that our review of a trial court's custody determination made after consideration of oral testimony is limited.

" ' " ' "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, ... 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...." ' "
" '[ Ex parte Bryowsky,] 676 So.2d [1322,] 1324 [ (Ala. 1996] ) ; see Lamb [v. Lamb], 939 So.2d [918,] 922 [ (Ala. Civ. App. 2006] ) ; see also Ex parte Foley, 864 So.2d 1094, 1099 (Ala. 2003) ("[A]n appellate court may not substitute its judgment for that of the trial court. To do so would be to reweigh the evidence, which Alabama law does not allow." (citation omitted) ).' "

Irions v. Holt, 156 So.3d 956, 962 (Ala. Civ. App. 2014) (quoting Ex parte Blackstock, 47 So.3d 801, 805 (Ala. 2009) ).

The evidence presented at trial indicated that the parents lack the ability to coparent the children. Although the father repeatedly blamed the mother for the problems of the children and the inability of the parents to communicate effectively, much of the evidence presented at trial supports the conclusion of both the guardian ad litem and the trial court that the main impediment to coparenting was the father.

For example, the father insisted at trial that the mother suffers from either bipolar disorder or borderline personality disorder ; however, no objective proof of either diagnosis appears in the record. The father reported to N.F.'s medical providers that N.F. had a family history of one or the other disorder and had remarked to the children that their mother is "a borderline." As the trial court described in its judgment, the evidence presented at trial indicated that the father's relationship with the mother is one "in which he is hostile, harassing, intimidating, condescending, and demeaning." The electronic-mail messages from the father to the mother contained in the record were routinely belittling and argumentative, and they demonstrate an extreme lack of flexibility and a refusal to cooperate with the mother. Furthermore, the record is riddled with indications of the contempt the father holds for the mother, whom, he testified unequivocally, he does not respect.

N.F. testified outside the presence of the parties on two separate days. The 13-year-old child was clearly conflicted and confused about which parent was telling him the truth. On the whole, N.F. testified that he desired to spend more time with the mother, that the mother was a more lax disciplinarian than the father, and that both parents provided for his needs and the needs of the three younger children. N.F. explained that the father made him feel badly about himself because the father had described N.F. as having "special needs," that the father "needs [N.F.] to be near perfect," and that the father "was always right." According to N.F., the mother spent time talking to him about his feelings and was supportive of him; he commented that she would tell him that everyone makes mistakes and did not make him feel "abnormal." N.F. also recounted that the father spoke ill of the mother by referring to her by her alleged diagnosis ("a borderline") or by implying that she was crazy ("that is what happens when you marry a crazy person") but said that the mother seldom spoke ill of the father. N.F. explained that he thought that he had been manipulated by the father into believing things about his mother that were not true; he admitted that he had, at first, wanted to reduce the time he spent with the mother, but, he said, he now wanted to spend more time with her. Most disturbing, however, was N.F.'s second day of testimony, when he recounted that his father had learned that N.F.'s earlier testimony was more favorable toward the mother than the father liked and had berated N.F. in front of the three younger children for "taking her side."

In addition, N.F. indicated that the father also spoke ill of the guardian ad litem to the children. According to N.F., the father had said that the mother and the guardian ad litem were determined to take the children away from him. The guardian ad litem included as exhibits to her report electronic-mail messages sent by the father to her. In one, in which the father requests that the guardian ad litem move the trial court for the suspension of the mother's visitation with N.F., the father stated:

"Now, [N.F.] states that he is cooperating with his mother and [the guardian ad litem] to live with his mother. Clearly, this option would be [N.F.'s] death knell. If we had the cooperation of [the] guardian ad litem, [the] father and [the] clinician, then this mess could very well have been avoided."

In another message, the father stated the following:

"This process ... has not produced the results I was hoping to achieve.... Nearly four months have elapsed since you and I first visited in Hartselle[;] I've spent thousands of dollars just since that day in this never-ending money-pit of a process and have garnered, frankly, nothing but more debt. I hope you don't think it unfair of me to ask, but when should I expect to see a return on my investment with you?"

The guardian ad litem indicated that she was not entirely sure what the father meant by "return on my investment," but she noted that the messages "serve as evidence of the father's entire[ly] disrespectful and noncompliant attitude toward [her] and the process as a whole."

The record further demonstrates that the parties have a serious disagreement about N.F.'s alleged mental illness and its treatment. As the trial court's judgment recounts, N.F. has seen 11 mental-health professionals since 2010. He has been prescribed 11 different medications, including Prozac, Zyprexa, and Lamictal. According to some of the father's testimony and certain documentary evidence, the father believes that N.F. has some form of emotional disturbance, up to and including the beginnings of borderline personality disorder or bipolar disorder, "like his mother." N.F. himself admitted that he "get[s] mad kind of quickly," but, he said, he did not "think that it is worse than any other teenager." The record contains certain progress notes from Tamara Pellant, a licensed professional counselor who treated N.F., and a psychological examination performed on N.F. by Dr. Lois Pope. Both professionals indicate that N.F. suffers from "rages," and Dr. Pope diagnosed N.F. with "cyclothymic disorder," which Dr. Pope testified was "fluctuating periods of anger, depression, or anxiety."

The mother indicated that she has concerns about the medications N.F. has been prescribed, but when she requested of the father to be included in N.F.'s medical appointments, the father informed her that she could make her own appointments, at her own expense, to speak with those medical professionals. The mother does not believe that N.F. suffers from any severe mental illness. Although she agrees that N.F. might have problems handling his emotions at times, she says that she considers him to be a normal boy adjusting to the changes of adolescence. N.F. testified that he thought that the medication and counseling helped him.

Further recitation of the evidence is unnecessary because the trial court's judgment more than adequately explains the concerns that prompted its decision to modify custody of the children. Chief among the reasons for the award of sole custody to the mother was what the trial court perceived to be the emotional harm that had resulted, and that could result in the future, from the father's behavior toward the mother and toward N.F. in the face of N.F.'s challenge to the father's campaign against the mother. This reason is not, as the father attempts to characterize it, merely based on an erosion of the father's relationship with N.F. or issues between the parties, which, the father contends, are not proper bases for modifying custody. See Pullum v. Webb, 669 So.2d 925, 927 (Ala. Civ. App. 1995) (stating that the "erosion of the relationship between the [custodial parent] and the children is insufficient to support a change in custody").

In the judgment, the trial court described the father's behavior during the pendency of the proceedings as "increasingly irrational and alarming" and noted that it was "causing emotional damage to the children." The trial court concluded that the father "does not always act in the best interest of the children, but instead acts in his own interests." Based on those findings and conclusions, the trial court determined that the mother had demonstrated a material change in circumstances, that a modification of custody would be in the best interest of the three younger children, and that a modification of N.F.'s custody would "promote [his] welfare ..., particularly his emotional and psychological welfare, and that the benefits of such change in custody substantially outweigh any disruptive effects." See Goetsch v. Goetsch, 990 So.2d 403, 411 (Ala. Civ. App. 2008) (affirming a modification of custody where the evidence supported a conclusion that the father's parenting behaviors were negatively affecting the children). Mindful of our standard of review, we conclude that the evidence of record supports the trial court's conclusions and supports the modification of the children's custody under both the best-interest and the McLendon standards.

The father next argues that the trial court erred in modifying his child-support obligation for several reasons. First, the father argues that his due-process rights were violated because, he says, he was not aware that his child-support obligation might be modified. Indeed, the mother did not request a modification of child support; the father did. Thus, the issue of child support was at issue before the court. As we explained above, our supreme court has explained that "any pleading showing on its face that the welfare of a child requires an order with respect to its custody and support is sufficient to invoke the jurisdiction of the circuit court to settle the matter." Ex parte Lipscomb, 660 So.2d at 989. In light of the fact that the trial court was tasked with determining the proper custodial arrangement for the children, we conclude that the trial court had the authority to consider an award of child support based on the custodial award made.

The father also attacks the substance of the child-support award. He contends that the judgment, insofar as it ordered him to pay child support, should be reversed because no child-support income affidavits are contained in the record. Although that is true, the parties each testified about their respective incomes, and the child-support-guideline form completed by the trial court reflects the income to which each parent testified.

"We have not, in every instance, reversed a trial court's child-support judgment simply because the requisite forms were not contained in the record. See Rimpf v. Campbell, 853 So.2d 957, 959 (Ala. Civ. App. 2002) ; Mosley v. Mosley, 747 So.2d 894, 898 (Ala. Civ. App. 1999) ; and Dismukes v. Dorsey, 686 So.2d 298, 301 (Ala. Civ. App. 1996) (stating that this court need not reverse a child-support award even though the required forms are not in the record where the record 'clearly indicat[es] that the award comports with the evidence regarding the parties' incomes'); see also Devine v. Devine, 812 So.2d 1278, 1282 (Ala. Civ. App. 2001)."

Dunn v. Dunn, 891 So.2d 891, 896 (Ala. Civ. App. 2004). Thus, we decline to reverse the judgment insofar as it awards child support on the basis that the income affidavits of the parties are missing from the record.

However, the father further argues that the trial court made an error in the computation of the child-support obligations of the parties. Indeed, it appears that the trial court improperly deducted from the mother's child-support obligation the $33.33 monthly health-insurance premium, which, the parties testified, the father paid. Thus, the trial court erred in its calculation of child support, and we reverse the judgment insofar as it ordered the father to pay $1,409 per month in child support. The trial court should properly recalculate the father's child-support obligation on remand.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

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

      The divorce judgment is inconsistent, awarding the father sole physical and sole legal custody of N.F. yet also stating that the parties are to share joint legal custody of N.F.

      The complaint states that "there has been a material change in circumstances such that an award of additional custodial time of the party's minor children to the mother would materially promote the welfare of said minor children so as to overcome any disruptive effects that may occur from uprooting the minor children from their current environment."

      We note that the three younger children testified before the trial court in camera and that their testimony was not recorded. Typically, "when a trial court bases its judgment upon ore tenus evidence that is not contained in the record on appeal, that judgment comes to this court clothed with a conclusive presumption that the absent testimony supports the judgment." Terry v. Terry, 660 So.2d 996, 998-99 (Ala. Civ. App. 1995). "This court repeatedly has stated that 'where there was evidence before the trial court, and not before [the appellate court], which may have influenced [the trial court] at arriving at the conclusion it reached,' we will not disturb that conclusion." Jennings v. Jennings, 892 So.2d 437, 439 (Ala. Civ. App. 2004) (quoting Eaton v. Shene, 282 Ala. 429, 430, 212 So.2d 596, 598 (1968), and affirming the denial of a petition to modify custody where in camera interviews of the children were not recorded). Because most, but not all, of the evidence presented in this matter pertained to the custody dispute relative to N.F., we will discuss the evidence and consider the appeal on the merits.

      The record reflects that the father, at least, had filed a child-support income affidavit. The mother's counsel indicated his intent to file one, as well, and the father's exhibit list listed as an exhibit the mother's income affidavit.

      The father notes that testimony from N.F. on the final day of trial in October 2016 indicates that the mother had changed employment and increased her income, and he complains that, as a result, the trial court did not have the mother's current income when it calculated the child-support obligation. N.F.'s testimony was that the mother's new employment "is higher paying. She is -- what do they call it? It is a higher pay, and she doesn't have to be away from home as much." Counsel for the mother objected on the ground that anything N.F. said about his mother's new employment would be hearsay or not based on firsthand knowledge; the trial court did not specifically rule on the objection, but it could have declined to consider N.F.'s general testimony about the mother's increase in income on those bases. See Rule 602 and Rule 802, Ala. R. Evid.; see also Spradley v. State, 128 So.3d 774, 786 (Ala. Crim. App. 2011). There is no other evidence indicating that the mother's income was not the amount to which she testified.