author: THOMPSON, Presiding Judge.

text:
    D.H. v. B.M. and T.S.
    C.H. v. B.M. and T.S.
    2150815 2160790
    Court of Civil Appeals of Alabama.
    October 20, 2017
    Brandon C. Stone of Stone Law Group, LLC, Millbrook, for appellant D.H.
    Bradley A. Hawley, Prattville, for appellant C.H.
    Debra L. Belcher, Gardendale, for appellees.
    On Application for Rehearing in Case No. 2160790
   THOMPSON, Presiding Judge.

This court's opinion of July 21, 2017, is withdrawn, and the following is substituted therefor.

On April 23, 2015, B.M. and T.S. ("the maternal grandparents") filed in the Autauga Juvenile Court ("the juvenile court") petitions alleging that D.L.H. ("the child") and W.H. ("the half sibling"), the minor children of C.H. ("the mother"), were dependent and seeking awards of custody of the children. We note that the record contains little evidence regarding the action pertaining to the half sibling. That child was quickly returned to the parents' custody and is not at issue in these appeals. Accordingly, we address only the action pertaining to the child. We further note that parallel dependency actions pertaining to the children were initiated by the Autauga Department of Human Resources ("DHR") before the maternal grandparents filed their petition regarding the child in the underlying action. DHR's dependency actions are discussed in greater detail later in this opinion.

In their dependency petition, the maternal grandparents alleged that D.H. ("the father") had sexually abused the child and that the mother was not taking action to properly protect and care for the child. On June 4, 2015, the juvenile court entered a pendente lite order in which it, among other things, left legal custody of the child with the parents, awarded pendente lite physical custody to B.M. ("the maternal grandmother"), and ordered that the father not have contact with the child. In that order, the juvenile court also left legal and physical custody of the half sibling with the parents but ordered that the half sibling and the child have visitation with each other.

On April 19, 2016, the juvenile court entered an order after receiving ore tenus evidence. In that order, the juvenile court found the child to be dependent and awarded custody to the maternal grandparents, denied the father visitation with the child, but awarded the mother visitation. The juvenile court conducted a final hearing on the merits on May 16, 2016.

On June 14, 2016, the juvenile court entered a judgment in which it again found the child to be dependent and awarded custody of the child to the maternal grandparents. In entering that judgment, the juvenile court found the child's allegations of abuse and "other problems in the home" to be credible, and it noted that the mother and the father had not believed the child and had claimed that the child could not distinguish dreams from reality.

On June 16, 2016, two days after the entry of the custody judgment, the father filed a notice of appeal from the juvenile court's judgment to the Autauga Circuit Court ("the circuit court"). In his June 16, 2016, notice of appeal, the father alleged that there was an inadequate record for appellate review, and he sought a trial de novo. On June 21, 2016, the father filed a "brief on notice of appeal filing," in which he asserted that he had filed a notice of appeal on June 16, 2016, but that that notice of appeal did not appear in "Alacourt records," i.e., in the electronic court-system database. In that brief, the father argued that the record of the juvenile court's proceedings was inadequate for appellate review in this court and, therefore, that the appeal should be to the circuit court. Attached to that "brief on notice of appeal filing" was a copy of the June 16, 2016, notice of appeal.

The juvenile court entered an order on June 22, 2016, noting that the father had filed the notice of appeal to the circuit court, which it noted was the incorrect forum, and finding that the father's assertion that there was an inadequate record was premature. Apparently in response to the June 22, 2016, order, the father amended his notice of appeal on June 23, 2016, on a form designating that the appeal be to this court.

On July 7, 2016, the mother filed a notice of appeal. The parties have incorrectly referred to the mother's notice of appeal as a "cross-appeal." See Black's Law Dictionary 117 (10th ed. 2014) (defining "cross-appeal" as "[a]n appeal by the appellee").

As an initial matter, we must determine whether this court has jurisdiction over the mother's appeal. In the absence of a timely postjudgment motion, the parties had 14 days, or until June 28, 2016, to file a timely appeal of the juvenile court's June 14, 2016, judgment. See Rule 4(a)(1)(E), Ala. R. App. P. The father timely appealed on June 16, 2016. Rule 4(a)(2), Ala. R. App. P., provides that if a party files a timely notice of appeal, "any other party may file a notice of appeal within 14 days (2 weeks) of the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this rule, whichever period last expires." Thus, after the father filed his timely notice of appeal, Rule 4(a)(2) operated to afford the mother additional time to file a timely notice of appeal of the June 14, 2016, judgment. W.F. v. State Dep't of Human Res., 704 So.2d 483, 485 n. 1 (Ala. Civ. App. 1997). Instead of being required to appeal by June 28, 2016, which was 14 days following the entry of the June 14, 2016, judgment, the mother had until June 30, 2016, which was 14 days after the father filed his timely, June 16, 2016, notice of appeal, to timely appeal the judgment.

Under the facts of this case, June 30, 2016, constituted the last date, under Rule 4(a)(2), on which the mother could timely appeal. The mother's July 7, 2016, notice of appeal was filed in excess of 14 days after the filing of the father's June 16, 2016, notice of appeal. In her response to this court's request for argument on the issue of the timeliness of her appeal, (see note 3, supra), the mother addressed only the father's June 23, 2016, notice of appeal, which amended his original notice of appeal to reflect that the appeal was to this court. The father's June 16, 2016, notice of appeal indicated that the appeal was to the circuit court because, he argued, the record on appeal was not adequate for review by this court under Rule 28, Ala. R. Juv. P. The juvenile court (see note 2, supra) and this court (see note 3, supra) disagreed that the record on appeal was inadequate; therefore, the father's notice of appeal should have indicated that the appeal was to this court. Rule 28, Ala. R. Juv. P. If an appeal is in the wrong court, the court will transfer the appeal to the correct court, even ex mero motu. See Rule 3(c), Ala. R. App. P. ("If the notice of appeal names the wrong appellate court to which the appeal is taken, such designation shall be treated as a clerical mistake and corrected accordingly. The necessary clerical steps shall be taken to docket the appeal and to file the record and briefs in the appropriate appellate court."); Rule 28(D), Ala. R. Juv. P. ("An appellate court or circuit court may transfer an appeal to another court if it determines that the appeal should be transferred to or should have been brought in that court."); Jenkins v. Covington, 939 So.2d 31, 33 (Ala. Civ. App. 2006) ; W.E.C. v. Madison Cty. Dep't of Human Res., 909 So.2d 849, 850 (Ala. Civ. App. 2005) ; and D.K.G. v. J.H., 627 So.2d 935, 936 (Ala. Civ. App. 1992) ; see also R.H. v. J.H., 778 So.2d 839, 841 (Ala. Civ. App. 2000) (the notice of appeal divested the juvenile court of jurisdiction). Thus, regardless of the fact that the father initially appealed to the circuit court instead of to this court, because the record has been deemed adequate, this court has jurisdiction over the appeal and the appeal is appropriately before this court; conversely, if the record on appeal had been deemed inadequate, the appeal would have been transferred to the circuit court. Rule 28(D), Ala. R. Juv. P.; D.K.G. v. J.H., supra ; Jenkins v. Covington, supra. The father's June 23, 2016, amended notice of appeal was not necessary and was not effective to toll any period for allowing the mother to timely appeal.

On application for rehearing in case no. 2160790, the mother argues that her notice of appeal was timely filed because, she argues, the father's June 16, 2016, notice of appeal was not accepted by the juvenile court clerk. The mother argues that the June 16, 2016, notice of appeal is not set forth in the record except as an exhibit to the father's June 21, 2016, "brief on notice of appeal filing." That notice of appeal, however, is date-stamped as having been filed in the clerk's office. The mother does not explain her contention that, despite that date stamp indicating that the notice of appeal was filed in the juvenile court, that court did not accept the filing. The mother contends in her brief on application for rehearing that "counsel for [the father] walked out of the courthouse with his attempted notice of appeal after the juvenile intake officer refused to accept it." There is nothing in the record to support that contention, neither party made such an allegation in response to this court's order requesting briefing on the timeliness of the mother's appeal, and the mother has not submitted any affidavits or statements from the clerk in support of her application for rehearing that might lend support to her allegation that the juvenile court did not accept the father's June 16, 2016, notice of appeal.

The mother points out that the case-action summary for the action does not list the father's June 16, 2016, notice of appeal. The case-action summary does contain an entry indicating that the father's "brief on appeal" was filed, as well as an entry for the juvenile court's June 22, 2016, order on "brief on appeal," as it is identified on the case-action summary. In that June 22, 2016, order, the juvenile court stated, among other things, that "the father ... has filed an appeal." Thus, the record clearly indicates that, regardless of any purported mistakes by the clerk's office in failing to make a notation on the case-action summary of the June 16, 2016, notice of appeal, that notice of appeal was filed in the juvenile court. The mother cites Rule 3(d), Ala. R. App. P., which requires the juvenile court to serve a copy of the notice of appeal on the appellate court and the parties, and she asserts that no such service was accomplished in this case. Although we agree that the clerk's office should be diligent in properly maintaining the case-action summary and in properly serving the parties, the mother has not identified any law indicating that the clerk's omission of an entry of a filing on the case-action summary affects the jurisdictional significance of the actual filing of a notice of appeal, especially given the father's brief discussing the June 16, 2016, notice of appeal and the juvenile court's June 22, 2016, order. In fact, the Committee Comments to Rule 3, Ala. R. App. P., provide that the "[t]imely filing of the notice of appeal is a jurisdictional act. It is the only step in the appellate process which is jurisdictional."

"The only jurisdictional prerequisite for an appeal is the timely filing of a notice of appeal. Edmondson v. Blakey, 341 So.2d 481, 484 (Ala. 1976) ; see also Committee Comments to Rule 3, Ala. R. App. P. ('Timely filing of the notice of appeal is a jurisdictional act. It is the only step in the appellate process which is jurisdictional.'). The Alabama Rules of Appellate Procedure were not 'designed to catch the unwary on technicalities.' Edmondson, 341 So.2d at 484. Accordingly, absent a showing that the alleged defect in a notice of appeal prejudiced the adverse party, an appeal will not be dismissed on the basis of that defect. See Wemett v. State, 536 So.2d 349, 350 (Fla. Dist. Ct. App. 1988) ('a defect in a notice of appeal that does not prejudice the adverse party will not serve as grounds for dismissal')."

Dunning v. New England Life Ins. Co., 890 So.2d 92, 96 (Ala. 2003). The mother has made no allegation that she was unaware of the June 16, 2016, notice of appeal and no showing that she was prejudiced (i.e., that she was unaware of the June 16, 2016, notice of appeal) by any failures on the part of the juvenile-court clerk to comply with rules governing the handling of a notice of appeal.

As noted earlier, the record indicates that the father filed a timely notice of appeal on June 16, 2016. The mother had until June 30, 2016, due to an extension pursuant to Rule 4(a)(2), to timely appeal. The mother's July 7, 2016, notice of appeal was not timely filed. Therefore, this court lacks jurisdiction over her appeal, and we dismiss the mother's appeal. M.M. v. L.L., 989 So.2d 528, 530 (Ala. Civ. App. 2007).

The record indicates that before the maternal grandparents initiated this dependency action, DHR had filed, on March 17, 2015, dependency petitions pertaining to the child and the half sibling. In those petitions, DHR alleged that the father had sexually abused the child, who was 11 at that time. We note that the dependency actions initiated by DHR pertaining to the children were consolidated in the juvenile court; we hereinafter refer to the action initiated by DHR pertaining to the child as "the .01 action." There is no indication in the record that any party sought to consolidate those actions with the dependency action regarding the child that was initiated by the maternal grandparents, and the record contains no order consolidating the .01 action with the dependency action underlying this appeal.

On April 10, 2015, the juvenile court entered an order in the .01 action (as well as in the dependency action pertaining to the half sibling initiated by DHR) in which it awarded pendente lite legal and physical custody of the half sibling to the parents, awarded pendente lite legal custody of the child to the parents, but awarded pendente lite physical custody of the child to the maternal grandmother. That order specified that, although the child and her half sibling would be allowed to visit each other, the father was to have no contact with the child.

The maternal grandparents initiated their dependency action pertaining to the child (hereinafter sometimes referred to as "the .02 action") on April 23, 2015.

On June 4, 2015, the juvenile court entered in the .01 action another pendente lite order that was substantively the same as its earlier, April 10, 2015, order. The record indicates that that order was entered on the State Judicial Information System in the .02 action, although the style of the order indicates that it was applicable to the .01 action.

On August 18, 2015, the maternal grandmother filed an "amended petition" to have the child declared dependent; that petition was styled as being applicable to the .01 action, but it was filed in the .02 action. The maternal grandparents later moved for a continuance of a scheduled hearing in the .01 action. It is clear that the parties and the juvenile court occasionally intermingled the case numbers in the two pending dependency actions pertaining to the child. It appears that the parties did not continue to allege that the half sibling, who remained in the custody of his parents, was dependent.

On December 14, 2015, the juvenile court entered an order in the .01 action in which it found the child to be dependent based on an "agreement of the parties" and awarded custody of the child to the maternal grandparents. In that order, the juvenile court specifically referred to the action in which that order was entered as being the dependency action initiated by DHR and stated that it had been entered following a "final hearing," although the juvenile court specified that the custody award was effective pending further orders of the court. No similar order was entered in the .02 action initiated by the maternal grandparents.

On January 7, 2016, the father filed in the .01 action a motion pursuant to Rule 60(b), Ala. R. Civ. P., in which he alleged that the juvenile court's December 14, 2015, order was based on a "factual mistake" because, he said, he was not present at the conference or hearing at which the other parties agreed that the child was dependent and that he did not agree that the child was dependent. The father also argued that no evidence had been presented as to the issue of the child's dependency. The father also filed a motion seeking visitation with the child, and he later, on March 17, 2016, amended his Rule 60(b) motion in the .01 action. There is no indication that the juvenile court ruled on that pending Rule 60(b) motion in the .01 action.

On April 19, 2016, the juvenile court entered an order in the .02 action after conducting an ore tenus hearing. In that April 19, 2016, order, the juvenile court found the child to be dependent, and, among other things, it stated that "[p]rior motions concerning dependency are moot." We note that, in his appellate brief, the father alleges that that April 19, 2016, order, by referencing earlier dependency motions, was a denial of his Rule 60(b)

motion filed in the .01 action. In that order, the juvenile court also denied a request by the father for visitation with the child based on a determination that such visitation would not be in the child's best interests. As noted earlier, the juvenile court entered a judgment in the .02 action on June 14, 2016, in which it again found the child to be dependent and awarded custody of the child to the maternal grandparents.

The father lists as his first argument on appeal the contention that the juvenile court deprived him of his due-process rights throughout the pendency of the dependency litigation. We note that the father has appealed only in the .02 dependency action initiated by the maternal grandparents. There is no indication that the juvenile court entered a judgment in the .01 action initiated by DHR at the same time, or approximately the same time, as the entry of the June 14, 2016, judgment in the underlying action, such that an appeal of any order entered in that action would be timely.

As part of his due-process argument, the father first contends that the juvenile court erred in awarding pendente lite custody of the child to the maternal grandmother in its April 10, 2015, pendente lite order entered in the .01 action because, he says, no evidence was presented to the juvenile court before it entered that order. We note that, in entering that pendente lite order, the juvenile court stated that it had based the order on an agreement of the parties. The father did not timely seek appellate review of that pendente lite order, which was entered in the .01 action and which was entered before the .02 action that forms the basis of this appeal was initiated.

The father also contends that the juvenile court erred in failing to allow him to attend a December 7, 2015, in camera meeting among the other parties and their attorneys and in entering an order on December 14, 2015, finding the child to be dependent based on the "agreement of the parties." The father asserts that he would not have agreed, and did not agree, that the child was dependent. Although the parties and the juvenile court appear to have intermingled some pleadings, motions, and orders between the two dependency actions, as discussed, supra, that December 14, 2015, order was specifically entered with regard to DHR's dependency petition in the .01 action, and it was not entered in the .02 action from which this appeal arises. Even assuming that this court could consider an argument pertaining to an order entered in the .01 action, the father cannot prevail on this argument. This court need not determine whether the December 14, 2015, order entered in the .01 action was sufficiently final to support an appeal. See, e.g., Ex parte T.C., 96 So.3d 123, 129-30 (Ala. 2012) (an order finding a child dependent, without making a custody determination, is not sufficiently final to support an appeal). If that order was final (and if this court could consider it), the father's notice of appeal was filed well outside the 14 days allowed by Rule 4(a)(1), Ala. R. App. P. Also, if the order was not final, this court could not review it on appeal because a pendente lite order is not made final by the entry of a final judgment but, rather, is replaced by the final judgment. Morgan v. Morgan, 183 So.3d 945, 966 (Ala. Civ. App. 2014) ; see also Ex parte J.P., 641 So.2d 276, 278 (Ala. 1994) ("Pendente lite orders are generally entered only during the pendency of the litigation and are usually replaced by a final order or judgment that is entered at the end of the litigation."). Thus, even assuming that this court could consider an order or judgment entered in the .01 action in this appeal of a judgment entered in the .02 action, we could not reach the orders with which the father takes issue in his brief on appeal.

The father also contends that the juvenile court "refused to correct the record" in entering its April 19, 2016, order and the June 14, 2016, judgment to reflect that the issue of whether the father had agreed that the child was dependent at the time of the entry of the April 10, 2015, order was not moot. The juvenile court found, in its April 19, 2016, order in this action, that "[p]rior motions concerning dependency are moot." The father cites no authority to support his argument, in contravention of Rule 28, Ala. R. App. P. Further, this court could not reach an argument pertaining to the April 19, 2016, pendente lite order as a part of this appeal of the June 14, 2016, final judgment. Rule 4(a)(1), Ala. R. App. P.; Morgan v. Morgan, supra.

The father next argues that the juvenile court erred in refusing to allow him to present evidence in opposition to the maternal grandparents' evidence on the issue of the dependency of the child during an April 18, 2016, hearing. The juvenile court briefly considered the father's argument that the hearing should continue so that the father could present evidence to rebut the evidence on the issue of the child's dependency. However, the juvenile court agreed with the argument presented by the mother's attorney that the parties were before the court on a motion alleging that there was no evidence of dependency, that evidence in support of that allegation had been presented, and that a hearing on the merits would be conducted at a later date. The juvenile court then entered its April 19, 2016, order finding the child to be dependent. Assuming, without deciding, that the April 19, 2016, order was sufficiently final to support an appeal, the father's failure to file such an appeal precludes review of that order in this appeal. W.P. v. Baldwin Cty. Dep't of Human Res., 208 So.3d 30, 32 (Ala. Civ. App. 2016) ; E.D. v. Madison Cty. Dep't of Human Res., 68 So.3d 163, 167 (Ala. Civ. App. 2010) (plurality opinion). On the other hand, assuming that the April 19, 2016, order was not sufficiently final to support an appeal, that order was replaced by the June 14, 2016, final judgment in this action. Morgan v. Morgan, supra. Thus, the father cannot obtain review of that decision in this appeal.

The father also argues that, based on the arguments above, the juvenile court improperly relied on those earlier dependency findings to again find the child dependent. This argument appears to reference the dependency determination in the juvenile court's June 14, 2016, judgment. The father appears to argue that the juvenile court could not rely on its earlier dependency determinations in its June 14, 2016, judgment. The father cites D.D.P. v. D.M.B., 173 So.3d 1, 4 (Ala. Civ. App. 2015), in which this court held that,

"[u]nder the particular circumstances of this case, in which the dependency of the child was initially determined in April 2010 and the juvenile court expressly declined to consider the issue of dependency in the January 2013 hearing by limiting the scope of that hearing solely to dispositional matters, we must conclude that the mother's constitutional rights to due process were violated."

(Emphasis added.)

The facts of this case are not like those of D.D.P. v. D.M.B., supra, where the juvenile court refused to consider the issue of dependency. Rather, in this case, the juvenile court received evidence on the issue of the child's dependency in the final, ore tenus hearing that resulted in its June 14, 2016, judgment. In that judgment, the juvenile court did refer to its earlier dependency determinations, but it also specified that the child "remains" dependent. In his brief on appeal, the father has not asserted an argument that the evidence did not support that part of the June 14, 2016, judgment in which the juvenile court found the child to still be dependent. It is not the function of the appellate courts to develop, research, and support an appellant's arguments. Jimmy Day Plumbing & Heating, Inc. v. Smith, 964 So.2d 1, 9 (Ala. 2007) ; Butler v. Town of Argo, 871 So.2d 1, 20 (Ala. 2003). Accordingly, we do not reach the issue of whether the evidence supported the juvenile court's dependency determination.

The father also argues that the record on appeal is inadequate for review. The father argues that certain portions of a transcript were designated as "inaudible" and that two transcripts of bench conferences were not recorded or transcribed. He cites W.E.C. v. Madison County Department of Human Resources, supra, in which this court, ex mero motu, determined that the juvenile court had erred in certifying the record on appeal as adequate and transferred the action to the circuit court for a trial de novo.

In this case, the father asserted his arguments concerning the adequacy of the record in several motions filed in this court. This court allowed the supplementation of the record to add certain materials the father alleged should be included in the record on appeal. On January 10, 2017, this court entered an order stating that the issue of the adequacy of the record on appeal would be considered when the appeal was submitted to this court. After the entry of that order, on January 16, 2017, the father filed another motion concerning the adequacy of the record and requesting that this court stay briefing until the issue of the adequacy of the record on appeal was determined. This court stayed briefing and examined the record. On February 15, 2017, this court entered an order concluding that the record on appeal was adequate. The father sought no further review of this court's ruling on that issue, and he does not reference this court's February 15, 2017, order in his appellant's brief.

As indicated earlier, the father does not, in his brief submitted to this court, argue that the juvenile court erred in determining that the child is dependent. He also does not challenge on appeal the award of custody of the child to the maternal grandparents. Accordingly, any arguments as to those issues are waived. Edosomwan ex rel. Edosomwan v. A.B.C. Daycare & Kindergarten, Inc., 32 So.3d 591, 593 (Ala. Civ. App. 2009) ; see also Jimmy Day Plumbing & Heating, Inc. v. Smith, supra ; Butler v. Town of Argo, supra.

Rather, the father argues that the juvenile court erred in entirely terminating his visitation with the child. He argues that the evidence does not support an indefinite suspension of his rights to visit the child. In its June 14, 2016, judgment awarding custody of the child to the maternal grandparents, the juvenile court found, among other things:

"The child has previously been found dependent, remains dependent and an order has been previously entered. The Court heard testimony and considered exhibits ore tenus including the testimony of the minor child, which included allegations of abuse by the father. The child was interviewed by Child Protect and others concerning sexual abuse and problems in the home and [sic] believed the child finding her to be consistent. Evidence showed the mother did not believe the child and both the father and mother felt the child was lying about these allegations, feeling [the child] could not distinguish dreams from reality. In addition, they believed the child should be returned to them because the case was no billed by a grand jury. The guardian ad litem entered his recommendation for custody to be placed with the [maternal grandparents] on the record."

Because the father has not challenged the determination of the child's dependency on appeal, we do not discuss in great detail the specifics of the evidence presented to the juvenile court. Rather, we set forth a brief recitation of the evidence pertinent to the issue of the father's visitation. The record indicates the following pertinent facts.

The maternal grandmother testified that on December 23, 2014, the 11-year-old child informed the maternal grandmother's teenaged son that the father had sexually abused her. At the teenager's instruction, the child repeated that allegation to the maternal grandmother. The maternal grandmother testified that the mother did not believe the child's allegations of abuse.

At the initial hearing, Terry Anderson, a DHR investigator, explained that, after the child reported the abuse, the child was placed with the maternal grandmother with the agreement of the mother and that DHR initiated an action to supervise the matter. DHR offered services such as counseling for the child, psychological evaluations for the parents, and supervised visitation. According to Anderson, DHR's position has remained that the child's report was credible and that it was not in her best interests to be placed in the parents' home with the father. Anderson also stated that DHR had determined that, based on several factors, including the child's gender, the half sibling was not as much at risk in being returned to the parents' home and custody and that DHR continued to check on the half sibling after his return to the parents' home. Anderson testified that if the juvenile court ordered the child to be placed in the parents' home, DHR would file a motion for a pickup order. Elizabeth Joyce, another DHR social worker, testified that she believed the child's allegations and does not think that it is in the child's best interests to be placed in the parents' home. Joyce also stated that if the child were returned to the parents' home, DHR would file an action seeking an award of custody of the child.

At the May 16, 2016, hearing, the maternal grandmother testified that, on the same night that the child made the abuse allegations, the mother told the child that "it was just a dream" and that the mother tried to convince the child that the abuse had not occurred. A great deal of testimony focused on the fact that, after making the abuse allegations on December 23, 2014, the child wanted to return to the parents' home on December 24, 2014, to celebrate Christmas. The maternal grandmother said that the child told her on one occasion that the alleged abuse had not occurred and that it had been a dream she had, but, the maternal grandmother also stated, the child later said it was not a dream. The maternal grandmother testified that the mother had suggested to the child that the abuse was a dream, but the mother denied that allegation and said that the child had stated that on her own. The maternal grandmother also testified that the mother had telephoned the child, on either December 23, 2014, or December 24, 2014, to tell the child that a beloved pet was sick and that, for that reason, the child wanted to return to the mother's home; the mother denied that allegation as well. The child asked to return to the maternal grandmother's home on December 25, 2014, and she has remained there since that time.

The parents each insisted that the child has hallucinations. The father stated that the child had had hallucinations "many times" and cited the child's supposedly seeing a ghost, red-eyed dogs, and floating people as examples. He stated that, approximately one month before the child made the abuse allegations, the family had watched a disturbing horror movie in which a child was haunted by a ghost and had been abused; the father seemed to attribute the abuse allegations to the child's having seen that movie.

The child testified that, on one occasion, she went to the emergency room with the mother and told a doctor there that she had seen ghosts, that she had seen people float, and that she had seen red-eyed dogs. The child stated that she had seen movies of all three things and that they had "gotten stuck" in her mind. When asked why she reported those things to the doctor, the child stated that "my mama convinced me, oh, it would be fun to go in an insane asylum." Jamie Hill, who became the child's counselor in September 2015, testified that the maternal grandmother had reported that the mother had tried to have the child admitted to a mental-health facility for seeing things but that the maternal grandmother had believed that the child's claims of hallucinations were based on an incident in which the family told "spooky" stories.

Both parents also testified that the child lied extensively and that the child had a hard time separating truth from reality. The mother testified that the child once accused her of using drugs and leaving her and the half sibling alone; she then stated that she had been taking medications, including injections, for her migraine headaches. The mother's attorney presented recordings of telephone calls of the mother speaking with the child in which the child had told some lies.

The maternal grandmother admitted that she had stated in a letter that was intended to go to DHR that the child had a history of lying, so she questioned the child several times about the veracity of the abuse allegations. The maternal grandmother testified that she believed the child and that the abuse allegations have remained consistent.

Anderson and Joyce each testified that they had heard that the child had a reputation for lying but that that had not made them disbelieve the child about the abuse allegations; Anderson explained that the child's reports about the alleged abuse had remained consistent. The child testified, relating the same allegations of abuse that she had to the DHR social workers and her counselor. The child admitted to telling some lies and tried to explain them as attempts at manipulation. She continued to insist, however, that the alleged abuse had occurred.

Joyce, the ongoing protective-services social worker, testified that the child's initial counselor who retired shortly after beginning sessions with the child, recommended that the child not visit either parent. Joyce explained that Hill, who, as noted earlier, became the child's counselor in September 2015, and a Ms. Dilan, who conducted psychological evaluations of the parents, also recommended against visitation with the parents. Hill testified that she would not recommend placing the child in the parents' home and that she recommended that the child not visit the father until she is an adult and can make the decision for herself whether to see him. Hill also stated that she believed the child should have only supervised visits with the mother. Hill stated that she had not talked with the child about the child's having possibly heard or seen things that were not real.

The child's testimony concerning the alleged abuse was consistent with her earlier reports. In addition to the allegations of sexual abuse, the child also testified that the father sometimes kicked or hit the family's animals and that he was verbally and sometimes physically abusive to the mother and the child. Hill testified that the child reported those allegations to her.

The father testified and denied all of the child's abuse allegations. The father stated that the police investigated the child's allegations but that the criminal case was "no-billed."

The father submitted to a psychological evaluation that was referenced in the questioning of the father during the hearing on the merits. The father testified that, in addition to conducting a written evaluation, the psychologist had asked him only five questions. The father denied telling the psychologist that he had post-traumatic stress disorder or borderline-personality disorder, denied telling her that he had been subjected to abuse as a child, and denied telling her that his brother had cut the father's throat in 2008; he further denied that any such statements were true. The father admitted that he had had several concussions from head injuries and that he had some memory problems. In questioning the father, the juvenile court noted that the psychological-exam report contained very specific information about the father, and it questioned the father about how the psychologist obtained that information; the father responded that he did not know and that he had not provided that information.

In denying visitation to the father, the juvenile court further found in its June 14, 2016, judgment:

"This Court heard testimony regarding the father ... and observed his demeanor. Testimony concerned several instances of sexual abuse upon the minor child along with other instances of abuse in the household. The father submitted to a psychological test which was entered into the record, wherein, throughout it stated '[The father] reported....' The information reported was not favorable to [the father], and during testimony, the father denied saying numerous items in the report but could not explain how the psychologist got such information. In regards to the grand jury, [the father] stated he had only talked on the phone with an investigator in Jefferson County. No concrete information was ever provided to this Court as to what was or was not considered by the grand jury concerning the case against the father. Lastly, the child's testimony and the consistency of statements throughout the case to therapists, DHR, and Child Protect reveal detailed information of several instances of inappropriate contact by the father with the child. Based on the evidence provided, it does not appear to this Court visitation or contact is in the best interest of the child with the father."

In arguing that the juvenile court erred in denying him visitation with the child, the father contends that the courts should take a "strict view on a complete bar" of visitation between a parent and a child. The father cites M.R.D. v. T.D., 989 So.2d 1111, 1114 (Ala. Civ. App. 2008), which provides:

"In light of the strong public policy favoring visitation, however, in cases where a final judgment (as opposed to a pendente lite order) indefinitely divesting a parent of all visitation rights is entered, that judgment should be based on evidence that would lead the trial court to be reasonably certain that the termination of visitation is essential to protect the child's best interests. Thus, notwithstanding the discretionary role of our learned trial judges, this court will continue to carefully scrutinize judgments divesting parents of all visitation rights with their children. See In re Norwood, 445 So.2d 301, 303 (Ala. Civ. App. 1984) (reversing judgment denying all visitation to child's mother); Naylor [v. Oden ], 415 So.2d [1118,] 1120 [ (Ala. Civ. App. 1982) ] (reversing judgment denying all visitation to child's mother and stating that 'the rights of natural parents, in visitation disputes as much as custody disputes, should be treated with great deference'); V.C. v. C.T., 976 So.2d 465, 469 (Ala. Civ. App. 2007) (main opinion indicating that 'a total denial of visitation rights has been upheld only rarely')."

We note that M.R.D. v. T.D., supra, involved a custody dispute between divorcing parents in which allegations arose that the father had sexually abused the four-year-old child. In that case, one expert witness stated that he could not definitively state, based on the statements made by the child, that the abuse had occurred. After reviewing the evidence, this court determined that the denial of visitation was "overly restrictive," and this court reversed the judgment. M.R.D. v. T.D., 989 So.2d at 1118.

Although the courts carefully scrutinize the denial of all visitation between a parent and a child, in this case, unlike in M.R.D. v. T.D., supra, the child has been found to be dependent, and the father did not appeal that determination.

"Alabama law authorizes a juvenile court to suspend a parent's visitation with a dependent child under appropriate circumstances. Section 12-15-314(a)(4), Ala. Code 1975, allows a juvenile court, in determining the disposition of a dependent child, to '[m]ake any other order as the juvenile court in its discretion shall deem to be for the welfare and best interests of the [dependent] child.' It is well settled that a trier of fact has broad discretion to determine a parent's right to visitation with a dependent child and that the best interests and welfare of the child is the primary consideration in determining whether to award visitation and, if so, the extent of that visitation. Minchew v. Mobile County Dep't of Human Res., 504 So.2d 310, 311 (Ala. Civ. App. 1987) ; K.B. v. Cleburne County Dep't of Human Res., 897 So.2d [379,] 387-88 [ (Ala. Civ. App. 2004) ] ; J.P. v. S.S., 989 So.2d 591, 601-02 (Ala. Civ. App. 2008) ; P.Y. v. State Dep't of Human Res., 634 So.2d 1021, 1022-23 (Ala. Civ. App. 1994) ; and Heup v. State Dep't of Human Res., 522 So.2d 295 (Ala. Civ. App. 1988)."

Y.N. v. Jefferson Cty. Dep't of Human Res., 67 So.3d 76, 82 (Ala. Civ. App. 2011).

In this case, the psychologist and DHR social workers each recommended that the child not visit with the father. In arguing that the evidence did not support a denial of visitation, the father, in essence, contends that the child's abuse allegations are not credible and cannot serve as a basis for denying him visitation. The father cites the facts that he was not indicted by the grand jury on child-abuse charges, that the child's half sibling was returned to the parents' custody, and that the child has a history of lying and hallucinations. As the juvenile court noted in its judgment, it is not clear what evidence might have been presented to the grand jury; the father claimed that he spoke with law-enforcement officials only twice, and those conversations occurred over the telephone. DHR social workers also explained that, given the specific facts of this case, and because the half sibling is a boy, and is the father's natural, rather than adopted, child, they did not believe that placing him in the home constituted a threat to that child.

The evidence concerning the child's history of lying and possible history of hallucinations is a matter of concern. However, although the maternal grandmother, the social workers, and the child's counselor each acknowledged the issues of lying and possible hallucinations, each testified that she believed the child's abuse allegations and each noted that the child's allegations had remained consistent over time. The record demonstrates that the parties' attorneys thoroughly addressed all of the issues that might impact the child's credibility and that the juvenile court sought clarification of some issues by questioning some of the witnesses itself. "These proceedings were conducted before the trial judge, who is charged with the duty and responsibility of resolving disputed issues of fact by weighing the evidence and, when appropriate, assessing the credibility of the witnesses. An appellate court defers to the findings of the trial court on such matters." S.S. v. Calhoun Cty. Dep't of Human Res., 212 So.3d 940, 951 (Ala. Civ. App. 2016).

"The juvenile court was in the best position to observe the witnesses while they testified and to evaluate their demeanor and credibility. Hall v. Mazzone, 486 So.2d 408, 410 (Ala. 1986). 'Moreover, "[b]ecause the trial court has the advantage of observing the witnesses' demeanor and has a superior opportunity to assess their credibility, [an appellate court] cannot alter the trial court's judgment unless it is so unsupported by the evidence as to be clearly and palpably wrong." ' Ex parte Fann, 810 So.2d [631,] 636 [ (Ala. 2001) ] (quoting Ex parte D.W.W., 717 So.2d 793, 795 (Ala. 1998) ). 'The trial court, as the finder of fact, is required to resolve conflicts in the evidence.' Ethridge v. Wright, 688 So.2d 818, 820 (Ala. Civ. App. 1996).
" ' "[The appellate court is not] allowed to reweigh the evidence in this case. This case ... turns on the trial court's perception of the evidence. The trial court is in the better position to evaluate the credibility of the witnesses ... and the trial court is in the better position to consider all of the evidence, as well as the many inferences that may be drawn from that evidence...." '
" Ex parte Patronas, 693 So.2d 473, 475 (Ala. 1997) (quoting Ex parte Bryowsky, 676 So.2d [1322,] 1326 [ (Ala. 1996) ] )."

D.M. v. Walker Cty. Dep't of Human Res., 919 So.2d 1197, 1214 (Ala. Civ. App. 2005).

We also note that the juvenile court might have questioned the father's credibility. See, e.g., Bunn v. Bunn, 628 So.2d 695, 697 (Ala. Civ. App. 1993) ("In determining the weight to be accorded testimony, the trial court, as sole judge of the credibility of witnesses, considers the demeanor and apparent candor or evasiveness of the witnesses, and the trial court may disbelieve and disregard portions of testimony and should accept only that testimony it considers worthy of belief."). The father denied that he provided most of the information used in the report of his psychological evaluation. In questioning the father on that issue, the juvenile court noted that the report contained a great deal of very detailed information. We note that, although the juvenile court stated in its judgment that the father's psychological evaluation had been entered into evidence, no party offered or submitted that psychological evaluation into evidence, and, therefore, it is not included in the record on appeal. The father has not argued that the juvenile court erred in considering that psychological evaluation, and, therefore, any argument on that issue is waived. Boshell v. Keith, 418 So.2d 89, 92 (Ala. 1982).

The evidence in the record was in conflict as to whether the alleged abuse occurred. It is clear from the juvenile court's judgment that the juvenile court believed the child's abuse allegations. It is undisputed that the psychologist and DHR witnesses recommended against requiring the child to visit the father. The juvenile court found that such visitation would not be in the child's best interests. Y.N. v. Jefferson Cty. Dep't of Human Res., supra. Given the deference afforded a juvenile court based on its hearing and considering ore tenus evidence, see B.S.L. v. S.E., 875 So.2d 1215, 1217 (Ala. Civ. App. 2003), we cannot say that the father has demonstrated that the juvenile court erred in denying him visitation with the child.

2150815-OPINION OF JULY 21, 2017, WITHDRAWN ON APPLICATION FOR REHEARING IN CASE NO. 2160790; OPINION SUBSTITUTED; AFFIRMED.

2160790-APPLICATION FOR REHEARING OVERRULED; OPINION OF JULY 21, 2017, WITHDRAWN; OPINION SUBSTITUTED; APPEAL DISMISSED.

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

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

      The record indicates that the child was born of the mother's relationship that occurred before the mother began her relationship with the father. The father adopted the child, and the half sibling was later born of the mother and father's marriage.

      The record contains an October 7, 2016, order of the juvenile court certifying the record as adequate for appeal.

      We note that, in addressing motions filed in this court by the father, which were joined by the mother, in which it was argued that the record on appeal was not adequate, this court entered an order on February 15, 2017, determining that the record was adequate. As a part of that February 15, 2017, order, this court also directed the parties to brief the issue of the timeliness of the mother's appeal, referencing certain cases, discussed infra.

      The June 22, 2016, order states, in its entirety:
      "The trial of this matter was recorded by electronic means. The father, by and through counsel, has filed an appeal to Circuit Court (which is the incorrect form [sic] ) stating there were non verbal responses, therefore, an inadequate record. That premature assumption is a matter for this Court to determine, once the electronic recording has been transcribed and sent to the Court, which has not been done by counsel."

      We make no determination as to the correctness of that argument.

      We note that the father also briefly argues that, unlike in M.R.D. v. T.D., supra, the juvenile court in this case made no specific factual findings regarding whether the alleged sexual abuse occurred. The father makes no specific argument that a factual finding of abuse was required, and he cites no authority requiring such a factual finding.

      We further note that, although the father filed several motions in which he contended that the record on appeal was not sufficient for review, the father's arguments were focused solely on the adequacy and availability of transcripts of various hearings in the .01 and the .02 actions. In his motions concerning the adequacy of the appellate record, the father made no argument that any exhibits were missing from the record on appeal.


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    Jerome W. HUGHES v. Valeriya M. HUGHES
    2160438
    Court of Civil Appeals of Alabama.
    October 27, 2017
    Dustin J. Fowler and Ellie L. Parker of Buntin, Etheredge & Fowler, LLC, Dothan, for appellant.
    Virginia R. Lucci, Montgomery, for appellee.
   MOORE, Judge.

Jerome W. Hughes ("the father") appeals from a judgment of the Houston Circuit Court ("the trial court") entered in a contempt action filed against him by Valeriya M. Hughes ("the mother"). We affirm the judgment in part and reverse it in part.

Procedural History

The parties have previously appeared before this court. See Hughes v. Hughes, 218 So.3d 349 (Ala. Civ. App. 2016). In Hughes, this court recited the procedural history of the case as follows:

"The parties were divorced by a judgment entered by the trial court on August 25, 2014. The divorce judgment incorporated a settlement agreement entered between the parties, which provided, among other things, that the parties would share joint legal custody of the parties' child, that the mother would have 'primary physical custody'1 of the parties' child, and that the father would have specified visitation. Additionally, the settlement agreement provided that the father would pay no child support but that he would be responsible for all costs associated with the child's private-school education. The settlement agreement further provided that each parent would give the other parent the right of first refusal if he or she anticipated the child being left with someone other than a parent for more than one night; that, if either parent would be traveling more than 100 miles from Dothan, he or she would give the other parent 48 hours' notice of the travel plans; and that neither parent would have overnight guests of the opposite sex while exercising custody or visitation with the child.
"On October 14, 2014, the mother filed a petition for a rule nisi, asserting, among other things, that the father had told her that he intended to remove the child from the state and that he had violated the parties' settlement agreement by allowing his girlfriend to stay overnight while he was exercising his visitation with the child.2 The mother sought an emergency hearing and an order directing the Sheriff of Houston County to assist her in obtaining custody of the child.
"On October 17, 2014, the father filed a response to the petition for a rule nisi as well as a petition for immediate temporary custody of the child. On that same date, the father filed with the trial court the affidavits of Doug Bauer, the headmaster at Ashford Academy, where the child was attending school, and Allyson Falgout, the child's teacher at Ashford Academy. On October 28, 2014, the father filed a motion for an instanter order of temporary custody and a request for an immediate hearing; the father attached to his motion the affidavit of Jennifer Campbell, a counselor at Ashford Academy. On that same date, the trial court entered an order setting a pendente lite hearing for November 10, 2014. The father filed a 'notice' to the trial court on October 30, 2014, informing the trial court that the child had been dismissed from Ashford Academy because of the behavior of the mother and her new husband; he attached to his notice a letter from Ashford Academy indicating that the child had been dismissed from the school. On November 3, 2014, the father filed a motion seeking the appointment of a guardian ad litem to represent the child's interests; the trial court granted that motion, noting that the father would bear all costs of the guardian ad litem.
"On November 9, 2014, one day before the scheduled pendente lite hearing, the father filed a notice of his intent to call witnesses at the pendente lite hearing and requested the presence of a court reporter at that hearing; the trial court entered an order denying that motion on November 10, 2014. On November 20, 2014, the trial court entered a pendente lite order, noting that all provisions in the settlement agreement of the parties that had been incorporated into the divorce judgment were to be followed unless modified by the November 20 order. The trial court also ordered the parties to complete parenting classes. It further ordered that the child was to be immediately re-enrolled at Ashford Academy, that the child was not to be withdrawn from Ashford Academy, and that the mother was to be respectful to all employees of Ashford Academy and was to follow the policies and procedures of the school at all times. The trial court ordered the mother not to direct and/or allow her new husband to speak on her behalf to employees at Ashford Academy regarding the child and further ordered the mother not to direct or influence the child to refer to the father as 'Jay,' noting that the father is the child's father and should be referred to as such. The trial court also ordered the parties 'not to influence the minor child in negative ways.'
"Also on November 20, 2014, the father filed a 'petition for modification in opposition to notice of change of residence.' The father asserted, among other things, that the mother had informed him that she intended to move with the child to Rhode Island on December 21, 2014. The father requested sole physical custody of the child or, in the alternative, an order preventing the mother from removing the child from Alabama. The father also filed that same day a petition for a rule nisi, asserting, among other things, that the mother had failed to give the father the right of first refusal to care for the child when the child was left with third parties for more than one night, that she had failed to give the father notice when she traveled more than 100 miles from Dothan, that she had deprived the father of his Wednesday night visitation with the child on October 22, 2014, that she had had guests of the opposite sex overnight during her custodial periods with the child, and that she had made disparaging comments about the father to the child, all in contravention of the parties' settlement agreement incorporated into the divorce judgment.
"On January 14, 2015, the mother filed a motion seeking an emergency hearing following the father's alleged arrest. The mother requested, among other things, that any visitation the child might have with the father be supervised. The mother filed an amended motion on that same date requesting the issuance of a protective order keeping the father away from the child; the mother asserted that the father would abscond with the child. On January 15, 2015, the trial court set the matter for a hearing on January 27, 2015. On February 18, 2015, the trial court entered a temporary order modifying the father's visitation with the child, instructing that, among other things, the father's parents were to supervise his visitation with the child and the child was not to be taken to the father's home at any time.
"On May 15, 2015, the father filed another 'petition for modification in opposition to notice of change of residence.' The father asserted in his petition that the mother informed him that she intended to move to Auburn with the child. The father sought sole physical custody of the child or, in the alternative, an order preventing the mother from removing the child from Houston County. The mother filed an answer to the father's petition on May 28, 2015. On that same date, the mother filed a counterclaim, seeking an award of attorney's fees from the father. The father later filed a response to the mother's counterclaim.
"On June 9, 2015, the father filed an instanter motion to vacate the trial court's February 18, 2015, temporary order and to reinstate the original custody/visitation order. Also on June 9, 2015, the trial court set the father's instanter motion for a hearing on June 30, 2015. On June 30, 2015, the trial court reset the hearing for July 28, 2015. The father filed a motion on June 29, 2015, seeking, among other things, a transfer of the child's custody to the father. At the July 28, 2015, hearing, as indicated in note 2, the trial court consolidated all the different actions involving the parties into a single action. At the outset of the July 28, 2015, hearing, the trial court stated that it intended to hear the father's petition to modify custody at that time. Both parties presented evidence, including testimony, at the hearing, at the end of which the trial court indicated that it was taking the case under advisement and entering an order for a 90-day trial period and noted that no final judgment was being entered in the case. On August 25, 2015, the trial court scheduled the case for a final hearing on November 3, 2015.
"A proposed temporary order was submitted to the trial court on September 17, 2015, and, on September 18, 2015, the trial court entered a 'temporary order' allowing the mother to move to Auburn with the child, allowing the father unsupervised visitation with the child, and modifying the father's visitation times with the child, among other things. Following the November 3, 2015, hearing, at which the trial court declined to allow the father to submit additional evidence, the trial court entered a judgment on November 10, 2015, awarding the parties joint legal custody of the child, with the mother having sole physical custody of the child. The trial court awarded the father visitation with the child three out of every four weekends per month beginning at 6:00 p.m. on Friday and ending at 6:00 p.m. on Sunday. The trial court further stated that 'the court having been informed the minor child is going to public school, the [father] is to pay child support in the amount of $350.00 per month' beginning December 1, 2015. The father filed his notice of appeal to this court on December 15, 2015.
"_______________
"1 The parties and the trial court refer to the arrangement as 'primary physical custody.' Because that is an incorrect term unrecognized in Alabama law, we use the term 'sole physical custody' throughout this opinion to conform to the language used in § 30-3-150 et seq., Ala. Code 1975.
"2 Some of the filings in the record on appeal were made in case number DR-13-900510, case number DR-13-900510.01, case number DR-13-900510.03, or case number DR-13-900510.04. At the July 28, 2015, hearing, the parties agreed to consolidate 'any and all matters' into case number DR-13-900510.02, and the trial court thereafter consolidated the cases. Because all the cases were consolidated by the trial court, in this opinion we do not identify in which case each document was filed in the trial court."

218 So.3d at 349-52. This court dismissed the father's appeal as having been taken from a nonfinal judgment because, we concluded, the trial court's November 10, 2015, judgment failed to adjudicate the petitions for a rule nisi filed by both parties, and, in addition, we noted that the trial court failed to address the mother's request for an award of attorney's fees. Id. at 352-53.

Following this court's dismissal of the appeal, the father filed, on September 14, 2016, a motion in the trial court requesting a hearing and for the trial court to address all claims presented or, in the alternative, to certify its November 10, 2015, judgment as final, pursuant to Rule 54(b), Ala. R. Civ. P. On February 22, 2017, the trial court entered a final judgment awarding the parties joint legal custody of the child; awarding the mother sole physical custody of the child, subject to the father's visitation three out of every four weekends per month; ordering the father to pay child support in the amount of $350 per month; and denying the petitions for a rule nisi filed by the parties, the mother's request for attorney's fees, and any remaining relief sought that was not addressed in that judgment. The father filed his notice of appeal to this court on March 17, 2017.

Facts

The father testified at the July 28, 2015, hearing that the mother made it difficult for him to visit with the child and that she withheld his visitations and failed to meet in the meeting places designated by the trial court. He testified that the mother is belligerent, aggressive, and uses profanity in front of the child and that she degrades and belittles the child. The father stated that the mother yelled and screamed at him and his parents as well. According to the father, he and the mother agreed that, in lieu of child support, he would pay for the child's private schooling, and, he said, he had done that and would continue to do so because it is important to him that he provide the child with the best opportunity to get an education and become a successful adult. The father testified that he is financially stable, that he lives in a two-bedroom house in Cottonwood, and that the child would have his own bedroom in the father's house. He stated that he loves the child. According to the father, the mother has remarried. He stated that he did not want the child to move to Auburn with the mother because he would not get to see the child and because, he asserted, the mother is trying to alienate him from the child.

Allyson Falgout, the child's K-5 teacher at Ashford Academy for the 2014-2015 school year, testified that she had had a lot of interaction with the mother and the mother's husband. She testified that, on one occasion, the mother had exhibited behavior at the school that had required that the police be called. Falgout stated that she had observed the mother yelling at the child, which, she said, had caused the child to cry; she testified that, in her opinion, the mother's constant yelling was verbally abusive to the child. She also testified that she had had to contact the father to calm the child down when the child had had behavior issues. According to Falgout, the child had seemed less uptight when the father would take the child to school instead of the mother. She testified to an incident at which the mother and her husband had joined the child on a field trip and the mother's husband had drank alcohol during the trip; she testified that both she and other parents on the filed trip had felt the husband's actions were inappropriate. Falgout testified that she likes the mother, but not her husband. She stated that the mother's husband had telephoned her and told her not to ask the child another question concerning the child's life, that he had been very rude, and that the conversation had upset her.

According to Falgout, she had had conferences with other school employees regarding the mother's conduct, which included entering the classroom, being "pushy," and demanding things from Falgout. She testified that the mother had overruled her in the classroom with regard to the child, but she admitted that the mother's demands always had concerned what the mother considered to be in the child's welfare. Falgout stated that, at one conference she had conducted, the mother had told her that she wanted the child to call her husband "Daddy" and to call the father "Jay" and the child had confirmed that to her as well. Falgout testified that the child was open with her and had often told her that he loved the father. She stated that she considered the child and the father to be close and that, in her opinion, it would be detrimental to move the child away from the father. Falgout added that Ashford Academy, where the child had been attending school, was closing.

Doug Bauer, the headmaster of Ashford Academy from 2014 to 2015, testified that he had interacted with the mother and the child. He testified that, on one occasion, he had been involved in a confrontation with the mother at the school because she had wanted to pick up the child on the father's visitation day, which had resulted in the mother's contacting the police. According to Bauer, on several occasions, the mother had hidden in the teacher's lounge at the school so that she could check the child out of school after the father had dropped the child off at school. He stated that the mother had yelled and screamed at him on more than one occasion with regard to issues between her and the father. Bauer stated that he did not have a very good relationship with the mother, but he had never had any problems with the father. Bauer testified that, on one occasion, the mother had advised him that she was going to take the child out of school and take him to Rhode Island and told Bauer not to tell the father. He stated that he had expressed his concern that the child was not doing well in school and that additional time in Rhode Island would be detrimental to the child, but the mother had indicated that she intended to move to Rhode Island with the child so it was a moot point. Bauer testified that the father had been very involved in the child's life. He stated that the mother had made attempts to catch the child up with regard to his grades after he had held a meeting about the mother's conduct. According to Bauer, the mother's husband had telephoned him telling him to "stay out of it" and had been abrasive to him, and, as a result, Bauer had hung up the telephone.

Jennifer Campbell, a child and family therapist who was the counselor at Ashford Academy during the 2014-2015 school year, testified as an expert. She stated that she had met with the child and had had counseling sessions with him throughout the school year. According to Campbell, the child had expressed that he loves the father. She stated that, in her opinion, moving the child to Auburn with the mother would be detrimental to the child because, she believed, the child had been used and brainwashed by the mother. Campbell testified that the things the mother tells the child to believe or say were confusing and hurting the child. She stated that the child needs to feel safe and secure and that he should be with the father for stability. According to Campbell, it was apparent to the child that he was being tugged back and forth, that the mother constantly talks badly about the father, and that the mother had been trying to play games and keep the child from the father. Campbell testified that the child had been very upset in the beginning of the school year because the mother had made it clear to the child that her husband would be his daddy rather than the father and because the mother would get very upset with the child if he failed to comply with the instruction to call her new husband "Daddy." She testified that the child had drawn a picture that showed the father off to the side and that the child had explained that he was going to be moving with his new daddy and his mommy far away from the father so that he would not be seeing the father anymore; she testified that the child's disclosures had been very alarming to her. She stated that she had seen repeatedly that the mother was trying to convince the child that the father is not the child's real father and that the father is a horrible person, which Campbell described as brainwashing. Campbell testified that the mother had told the child that the father is a bad person. Campbell stated that the mother's having taken a parenting class was a step in the right direction and that the parenting class the mother had participated in is a good program.

Louise Hughes, the child's paternal grandmother, testified that, in May 2015, she and her husband had attended the child's graduation at Ashford Academy and that the mother had used profanity toward her at the ceremony. Hughes stated that the mother's husband had approached her and had stated that, if she never spoke to the father, he might let her and her husband see the child a couple of times once the father goes to prison. Hughes testified that she had seen the mother hit the child because the child would not eat as fast as she wanted him to eat and that the mother had refused to allow her to pick up the child pursuant to the trial court's temporary order. According to Hughes, the mother had yelled profanities at her in front of the child during a visitation swap. She testified that both the mother and her husband have bad tempers and that she did not feel safe with them having custody of the child.

Seth Brooks, an Assistant District Attorney for the 20th Judicial Circuit of Alabama, testified that he knows the father through cases he had been involved in, including a case involving a drug charge against the father that had been dismissed and a case regarding forfeiture of canines. Brooks stated that the drug charge against the father had been dismissed to expedite the proceedings involving the canines, both for economical reasons and for the safety and well-being of the canines. He testified that he had never looked at the evidence with regard to the dismissed drug charge, and, therefore, he did not have any personal knowledge as to whether there had been any drugs in the father's house. He testified, however, that he had filed a complaint with the Alabama Board of Private Investigators against the mother's husband and that criminal charges possibly could be brought against the mother's husband because he had misrepresented himself as a private investigator in an attempt to speak with Brooks about the drug case involving the father.

Jim Smith, the public-safety director at the Cottonwood Police Department, testified that he had participated in executing a search warrant at the father's residence pursuant to the father's arrest on June 16, 2015. He testified that the house had been full of dog feces and that the father had had several dogs living inside the house, including some that appeared to have been neglected. According to Smith, the father's house had been in disarray and he had found suspected controlled substances, although lab tests had not come back to confirm that at the time of the hearing. Smith testified that he had found firearms in the father's house where the child could reach them and that he had also found a "suppressor," or a silencer, which fit a gun found in the father's house. Smith stated that he had found glass pipes in the house, some of which contained burn marks and had been washed, and that those glass pipes would be classified as burn pipes for smoking drugs, commonly marijuana. He admitted that one could also smoke tobacco out of those devices. Smith testified that the dogs had been seized because of their emaciated condition and that the dogs remained in the custody of a rescue organization. According to Smith, at the time of the search, the father's house was not conducive to live in, but, after being shown current pictures of the father's house, he agreed that it would be safe for the child to live in.

The father testified that he had been arrested for possession of a controlled substance but that that charge had been dismissed with prejudice. He testified that his dogs had been taken from him but that the dogs had not been abused, that they had been taken care of, and that he loved the dogs. In regard to the glass pipes, he testified that he is a glass blower, that he makes the pipes, which are oil burners, that there were multiple oil burners in his house, and that he also makes ornaments and figurines. The father admitted that there had been accusations that he uses drugs, but he submitted to the court negative drug-test results dated January 16 and January 29, 2015.

The mother, who is Ukrainian, testified that her husband had been presented with an opportunity to run a business in Auburn where he would make good money. She testified that they had found a good private school for the child to attend and a good apartment complex to live in and that she would agree to meet the father halfway between their residences for his visitation with the child. She stated that her parents intended to move to Auburn after she and the child moved there. The mother stated that she wanted the child to have visitation and a good relationship with the father and that she encouraged that relationship. She testified, however, that the father had not cooperated with her regarding visitation with the child and that he had made her go from place to place to pick up the child. The mother denied having yelled at the child at school and stated that she has a loud voice. With regard to the child's school field trip, the mother testified that her husband had had one can of beer on the field trip, that other parents had consumed alcohol on the trip, and that nobody had become intoxicated. The mother stated that she had not yelled at the paternal grandmother during the child's graduation ceremony. According to the mother, Falgout had lied about some things, including the mother's having verbally abused and yelled at the child during the child's graduation ceremony. The mother also denied having told the child to call her husband "Daddy."

The child's guardian ad litem stated at the hearing that he did not think it would serve the child's best interest to change custody at that time.

Standard of Review
" 'On appellate review of custody matters, [the appellate] court is limited when the evidence was presented ore tenus, and, in such circumstances, a trial court's determination will not be disturbed "absent an abuse of discretion or where it is shown to be plainly and palpably wrong." Alexander v. Alexander, 625 So.2d 433, 434 (Ala. Civ. App. 1993) (citing Benton v.Benton, [520 So.2d 534 (Ala. Civ. App. 1988) ] ). As the Alabama Supreme Court highlighted in [ Ex parte ] Patronas, [693 So.2d 473 (Ala. 1997) ], " '[T]he trial court is in the better position to consider all of the evidence, as well as the many inferences that may be drawn from that evidence, and to decide the issue of custody.' " Patronas, 693 So.2d at 474 (quoting Ex parte Bryowsky, 676 So.2d 1322, 1326 (Ala. 1996) ). Thus, appellate review of a judgment modifying custody when the evidence was presented ore tenus is limited to determining whether there was sufficient evidence to support the trial court's judgment. See Patronas, 693 So.2d at 475.
" ' "However, even under the ore tenus rule, '[w]here the conclusion of the trial court is so opposed to the weight of the evidence that the variable factor of witness demeanor could not reasonably substantiate it, then the conclusion is clearly erroneous and must be reversed.' " B.J.N. v. P.D., 742 So.2d 1270, 1274 (Ala. Civ. App. 1999) (quoting Jacoby v. Bell, 370 So.2d 278, 280 (Ala. 1979) ).'
" Cheek v. Dyess, 1 So.3d 1025, 1029 (Ala. Civ. App. 2007). Moreover, the ore tenus rule does not apply to a trial court's legal conclusions. Ex parte Cater, 772 So.2d 1117, 1119 (Ala. 2000). Legal conclusions are subject to de novo review. Shealy v. Golden, 897 So.2d 268, 271 (Ala. 2004)."

R.D.R. v. C.R.P., 237 So.3d 873, 877-78 (Ala. Civ. App. 2016).

Analysis

The father argues on appeal that the trial court erred by ordering him to pay child support and by failing to order that the child attend private school as agreed upon by the parties. With regard to child support, the divorce judgment, which incorporated the parties' agreement, provides, in pertinent part:

"The [father] shall not be ordered to pay child support by the guidelines, in the amount of $256.00. The [father] shall be responsible for all costs associated with private school to include but not limited to tuition, books, uniforms, fees, and lunches."

The father argues that, because he did not receive notice that the child-support provision of the divorce judgment might be modified, he was deprived of due process when the trial court ordered that he begin paying child support to the mother.

In State ex rel. Vickers v. Vickers, 684 So.2d 1327, 1329 (Ala. Civ. App. 1996), this court observed that, "[w]here there is no pleading, either written or oral, seeking modification of the amount of child support, and the issue is not tried by consent of the parties, expressly or impliedly, a judgment modifying the support order is due to be reversed." In the present case, the parties agreed that, in lieu of child support, the father would pay for the child's private-school expenses. The mother did not file a claim seeking a modification of child support in any written pleading submitted to the trial court. During the July 28, 2015, hearing, at which evidence was presented, when the issue of child support was broached, the father's attorney cited the child-support provision of the divorce judgment and the trial court stated that it was "not an issue." The trial court having expressly stated that the issue of child support was not being tried at that time, it cannot be said to have been tried by the parties' implied consent at that hearing. At the November 3, 2015, hearing, the father again argued that a modification of child support was not before the trial court. Because the issue of child support was not properly raised before the trial court and the father did not consent to the trial court's hearing that issue at any time, we agree that the trial court erred in modifying the terms of the divorce judgment by ordering the father to pay a monthly child-support amount. Accordingly, we reverse that portion of the trial court's judgment and remand the case for the entry of a judgment consistent with this court's opinion as to that issue.

The father next argues that the trial court erred by failing to allow him to present testimony at the November 3, 2015, hearing. He asserts that that failure violated his right to due process. Although the father sought to present testimony at that hearing, the father failed to argue to the trial court at any time that his due-process rights had been violated. "[An appellate court] cannot consider arguments raised for the first time on appeal; rather, our review is restricted to the evidence and arguments considered by the trial court." Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala. 1992). Because the father failed to first present this argument to the trial court, we decline to address it for the first time on appeal.

The father next argues that the trial court erred by denying his November 9, 2014, motion indicating his intent to call witnesses and his request for the presence of a court reporter at the pendente lite hearing scheduled for November 10, 2014. Because the trial court's entry of a final judgment superseded the pendente lite order, which was interlocutory in nature, it rendered any issues concerning the propriety of the pendente lite order moot. F.M. v. B.S., 170 So.3d 663, 668 (Ala. Civ. App. 2014). The father argues, however, that, because he might seek further modifications of custody, including seeking pendente lite relief, in the future, this issue "falls within the exception to the doctrine of mootness." The father cites, among other cases, McCoo v. State, 921 So.2d 450, 458 (Ala. 2005), in which our supreme court explained the "exception to the mootness doctrine in a situation where the controversy involves an important issue that is 'capable of repetition but evading review.' " (Quoting other cases.) In McCoo, our supreme court addressed an issue where the action of the trial court would effectively render the underlying issue moot because, according to the supreme court, it was empirically predictable that, if the issue in that case, which it described as "the waste of judicial time and resources caused by unnecessary remands," 921 So.2d at 459, was not addressed substantively, it would continue to burden the workload of trial courts and appellate courts, and, thus, the supreme court determined, it was appropriate to address the issue despite the entry of a final order in the case by the Court of Criminal Appeals.

In the present case, the father argues that, if this court does not address the issue regarding the pendente lite hearing, "the trial court will forever be allowed to deny the right of a court reporter to transcribe pendente lite proceedings at the last minute, and further, allow the trial court to forever deny the father due process of law by not allowing him to call witnesses in violation of [the law]." (Emphasis added.) The father fails, however, to cite any authority indicating that the issue in the present case falls within the exception outlined in McCoo. He asserts that, because he might seek to modify custody and to seek pendente lite relief in the future, the issue falls within the exception to mootness. We disagree. Unlike the issue in McCoo or those in the other cases cited by the father, which the appellate courts in those cases found were likely to be repeated, there is no certainty that the father, or any litigant, will request a court reporter and the transcription of pendente lite proceedings "at the last minute," as the father did in the present case or that the court would deny such a request. Because the issues surrounding the pendente lite proceedings were supplanted by the entry of a final judgment in this case, we decline to address this issue further.

The father next argues that the trial court erred by denying his right to make an offer of proof, on the record, after an objection was sustained by the trial court. At the November 3, 2015, hearing, the following exchange occurred during Campbell's testimony:

"Q. [By the father's attorney:] Did [the child] ever inform you that he was supposed to call [the mother's new husband], Daddy?
"A. Yes.
"[The mother's attorney]: Object. That's hearsay.
"The Court: Sustained.
"[The father's attorney]: Your Honor, may I respond to the hearsay objection?
"The Court: No. Because he, being the child-did the child inform you that he was supposed to call [the mother's current husband], Daddy. That's hearsay from the child. Objection sustained. Next question.
"[The father's attorney]: Your Honor, we would like to do a proffer for the record.
"The Court: Next question, or I move onto [the mother's attorney's] cross.
"[The father's attorney]: For the record, I'm not going to be able to do a proffer, Your Honor, to present my case?
"The Court: That's correct."

The father cites Ex parte Fields, 382 So.2d 598, 599 (Ala. 1980), in which our supreme court stated:

"As a general proposition, the party asking a question to which an objection has been sustained must be given the opportunity to make an offer of proof stating the answer expected to be given. C. Gamble, McElroy's Alabama Evidence § 425.01(2) (3rd ed. 1977)."

In Walton v. Walton, 409 So.2d 858, 861 (Ala. Civ. App. 1982), this court observed the reason for that rule and an exception thereto:

"Generally, in order to preserve review of the trial court's ruling sustaining an objection to proffered evidence, the party offering the evidence must make an offer of proof indicating what the evidence would have shown. Cherry v. Hill, 283 Ala. 74, 214 So.2d 427 (1968). However, in situations in which the question disallowed indicates on its face the expected answer, no offer of proof is necessary to preserve error on appeal. Id."

In the present case, the question asked by the father's attorney-whether the child had informed the school counselor that he was supposed to call the mother's current husband "Daddy"-clearly indicates that the expected answer is "yes." Thus, this court could have reviewed the propriety of the trial court's ruling sustaining the objection without an offer of proof. Accordingly, any error by the trial court in denying the father the opportunity to make an offer of proof was harmless. See Rule 45, Ala. R. App. P. We therefore decline to reverse the trial court's judgment based on this issue.

The father next argues that the trial court erred in allowing testimony regarding his arrest and the subsequent dismissal of the drug charge against him into evidence over his objection. Citing Rule 609, Ala. R. Evid., which governs the admissibility of evidence for the purpose of attacking a witness's credibility, the father argues that, because he was not convicted of a crime, the evidence surrounding his arrest was inadmissible. We note, however, that there is no indication that the testimony elicited from Brooks and Smith was for the purpose of attacking the father's credibility. Thus, there has been no showing that Rule 609 is applicable. The father also cites Hereford v. State, 608 So.2d 439 (Ala. Crim. App. 1992), and Kaufman v. Kaufman, 934 So.2d 1073 (Ala. Civ. App. 2005), for the proposition that offers to settle or compromise are inadmissible. In Kaufman, this court concluded that the trial court in that case had erred in considering the parties' settlement negotiations in reaching its property-division and alimony awards in its judgment divorcing the parties. 934 So.2d at 1078-79. In Hereford, the Alabama Court of Criminal Appeals concluded that a statement by the defendant to a law-enforcement officer that the defendant would pay for the damage resulting from a structure that had burned was inadmissible. 608 So.2d at 443-47. In the present case, however, there is no testimony indicating that the father had made an offer to settle or compromise with regard to his arrest. Brooks's testimony indicating that a drug charge against the father had been dismissed did not indicate that the father had made an offer to settle with regard to that charge; rather, it indicated only that the authorities had made the decision to dismiss the charge. Accordingly, neither Kaufman or Hereford support the father's argument that the trial court erred by admitting the testimony of Brooks or Smith.

Rule 401, Ala. R. Evid., provides that " '[r]elevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." The mother argues in her brief to this court that the testimony referred to by the father is relevant to the issue of a proposed custody modification.

The father has failed to respond to that argument or otherwise argue that the evidence at issue is irrelevant to the issues raised by the parties. Thus, that issue is waived. See Gary v. Crouch, 923 So.2d 1130, 1136 (Ala. Civ. App. 2005) ("[T]his court is confined in its review to addressing the arguments raised by the parties in their briefs on appeal; arguments not raised by the parties are waived.").

The father next argues that the trial court made a number of comments directed at the father's counsel in contravention of the Alabama Canons of Judicial Ethics. The father asserts that his counsel's failure to object to those statements was based on his concern that doing so would only worsen the situation. Although the father's concerns in that regard are understandable, this court may not address arguments that were not raised before the trial court. See Gary, supra. Accordingly, we decline to further address this issue.

We last address the father's argument that the trial court erred by denying the father's petition to modify custody and by allowing the mother to relocate with the parties' child. The father cites Ala. Code 1975, § 30-3-169.4, which provides:

"In proceedings under this article [i.e., the Alabama Parent-Child Relationship Protection Act, § 30-3-160 et seq., Ala. Code 1975 ] unless there has been a determination that the party objecting to the change of the principal residence of the child has been found to have committed domestic violence or child abuse, there shall be a rebuttable presumption that a change of principal residence of a child is not in the best interest of the child. The party seeking a change of principal residence of a child shall have the initial burden of proof on the issue. If that burden of proof is met, the burden of proof shifts to the non-relocating party."

The father also cites Ala. Code 1975, § 30-3-169.3, which provides, in pertinent part:

"(a) Upon the entry of a temporary order or upon final judgment permitting the change of principal residence of a child, a court may consider a proposed change of principal residence of a child as a factor to support a change of custody of the child. In determining whether a proposed or actual change of principal residence of a minor child should cause a change in custody of that child, a court shall take into account all factors affecting the child, including, but not limited to, the following:
"(1) The nature, quality, extent of involvement, and duration of the child's relationship with the person proposing to relocate with the child and with the non-relocating person, siblings, and other significant persons or institutions in the child's life.
"(2) The age, developmental stage, needs of the child, and the likely impact the change of principal residence of a child will have on the child's physical, educational, and emotional development, taking into consideration any special needs of the child.
"(3) The increase in travel time for the child created by the change in principal residence of the child or a person entitled to custody of or visitation with the child.
"(4) The availability and cost of alternate means of communication between the child and the non-relocating party.
"(5) The feasibility of preserving the relationship between the non-relocating person and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties.
"(6) The preference of the child, taking into consideration the age and maturity of the child.
"(7) The degree to which a change or proposed change of the principal residence of the child will result in uprooting the child as compared to the degree to which a modification of the custody of the child will result in uprooting the child.
"(8) The extent to which custody and visitation rights have been allowed and exercised.
"(9) Whether there is an established pattern of conduct of the person seeking to change the principal residence of a child, either to promote or thwart the relationship of the child and the non-relocating person.
"(10) Whether the person seeking to change the principal residence of a child, once out of the jurisdiction, is likely to comply with any new visitation arrangement and the disposition of that person to foster a joint parenting arrangement with the non-relocating party.
"(11) Whether the relocation of the child will enhance the general quality of life for both the custodial party seeking the change of principal residence of the child and the child, including, but not limited to, financial or emotional benefit or educational opportunities.
"(12) Whether or not a support system is available in the area of the proposed new residence of the child, especially in the event of an emergency or disability to the person having custody of the child.
"....
"(14) The stability of the family unit of the persons entitled to custody of and visitation with a child.
"(15) The reasons of each person for seeking or opposing a change of principal residence of a child.
"(16) Evidence relating to a history of domestic violence or child abuse.
"(17) Any other factor that in the opinion of the court is material to the general issue or otherwise provided by law.
"(b) The court making a determination of such issue shall enter an order granting the objection to the change or proposed change of principal residence of a child, denying the objection to the change or proposed change of principal residence of a child, or any other appropriate relief based upon the facts of the case."

The father argues that, based on the testimony presented, the factors in § 30-3-169.3 weigh heavily in favor of the father and that the trial court erred in allowing the mother to relocate to Auburn with the child. We agree with the father that much of the evidence presented would support a modification of custody, given the factors to be considered in light of the mother's relocation. We note also, however, that much of the evidence referenced by the father regarding the mother's behavior was refuted by the mother during her testimony. Evidence was also presented indicating that, at some point, the father's residence was in disarray, that the father had had a number of canines whose care the father had neglected, that the father's residence had contained dog feces, and that there were firearms inside the father's house that were kept within the child's reach. Although evidence was presented indicating that glass pipes, commonly used for smoking illegal substances, were found in the father's house, the father refuted that testimony. Additionally, although Smith, who provided much, if not all, of the negative testimony regarding the father, indicated that a photograph depicting the father's residence showed that the residence would be safe for a child, the trial court could have considered the testimony regarding the previous state of the father's house and the safety concerns to the child resulting therefrom. The child's guardian ad litem also indicated to the trial court that a change in custody would not serve the child's best interest.

"We are not allowed to substitute our judgment for that of the trial court, even when this court might have reached a different result, unless the trial court's resolution of the facts is plainly and palpably wrong. L.R.M. v. D.M., 962 So.2d 864, 873-74 (Ala. Civ. App. 2007) (citing Griggs v. Griggs, 638 So.2d 916, 918-19 (Ala. Civ. App. 1994), quoting in turn Young v. Young, 376 So.2d 737, 739 (Ala. Civ. App. 1979) ). ' "[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." ' Ex parte R.E.C., 899 So.2d 272, 279 (Ala. 2004) (quoting Ex parte Foley, 864 So.2d 1094, 1099 (Ala. 2003) ). When addressing the inability of an appellate court to reweigh the evidence and substitute its judgment for that of the trial court, our supreme court recognized:
" 'The trial court must be allowed to be the trial court; otherwise, we (appellate court judges and justices) risk going beyond the familiar surroundings of our appellate jurisdiction and into an area with which we are unfamiliar and for which we are ill-suited-factfinding.'

" Ex parte R.T.S., 771 So.2d 475, 477 (Ala. 2000)." J.B. v. Cleburne Cty. Dep't of Human Res., 992 So.2d 34, 39-40 (Ala. Civ. App. 2008). Because the trial court's judgment is supported by the evidence, we affirm that judgment with regard to its decision declining to modify custody and allowing the mother to relocate with the child to Auburn.

Conclusion

We reverse the trial court's judgment with regard to its modification of the child-support provision of the divorce judgment, and we remand the case for the entry of a judgment consistent with this opinion. With regard to the remaining issues raised on appeal, we affirm the trial court's judgment.

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

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

Donaldson, J., concurs specially.

I concur. I write to observe that neither party discusses whether the evidence related to the filing of a criminal charge against the father was character evidence and whether the father's character was an essential element of a claim or defense in this custody litigation. See Rule 405(b), Ala. R. Evid.