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Madrigal v. Madrigal

Court of Civil Appeals of Alabama
Nov 9, 2023
No. CL-2022-1265 (Ala. Civ. App. Nov. 9, 2023)

Opinion

CL-2022-1265

11-09-2023

John Paul Madrigal v. Courtney H. Madrigal


Appeal from Talladega Circuit Court (DR-20-900004.02)

FRIDY, JUDGE.

John Paul Madrigal ("the father") appeals from a judgment of the Talladega Circuit Court ("the trial court") permitting Courtney H. Madrigal ("the mother") to relocate with their child, E.B.M. ("the child"), and modifying the father's visitation schedule with the child. We reverse the judgment and remand the cause to the trial court.

Background

The trial court entered a judgment divorcing the father and the mother on September 16, 2020. The child, born in 2015, was the only child born of the parties' marriage. Pursuant to a settlement agreement incorporated into the parties' divorce judgment, the parties shared joint legal custody of the child with the mother having sole physical custody of the child. The father had visitation with the child every other weekend from the time the child was released from school on Friday until the child returned to school on Monday. During those weekends that the father did not have visitation with the child for the whole weekend, he had visitation with the child from the time the child got out of school on Friday until 8:00 a.m. on Saturday. The divorce judgment additionally established a summer and holiday visitation schedule.

On May 29, 2021, the mother, who resided in Anniston at the time of trial, sent the father, who resided in Oxford, a notice of intent to relocate with the child to "the Greater Nashville[, Tennessee] Metropolitan Area," where her fiance, Ryan Pearl, resided at the time.

The father filed an objection, and, after a trial, the trial court entered an order prohibiting the mother from relocating with the child. The mother appealed the trial court's judgment to this court but subsequently dismissed her appeal.

The mother provided a second notice-of-relocation letter to the father on January 10, 2022. According to the mother's testimony at the subsequent trial, after the trial court denied the mother's attempt to relocate to the Nashville area, Pearl accepted a new job and obtained a residence in Newnan, Georgia. Newnan is approximately an hour and a half away from Anniston, according to the mother's trial testimony. The reason for the out-of-state relocation, the mother purportedly stated in the second notice-of-relocation letter, was "due to better living, educational, and cultural opportunities."

The mother's second notice-of-relocation letter does not appear in the record on appeal.

On January 20, 2022, the father filed an objection to the relocation, stating that the child had no family or support system in the area. According to the father's objection to relocation, the mother intended to relocate with the child to "the Greater Newnan, Georgia, area" on May 27, 2022. Additionally, the father stated: "It should also be considered that the [mother] has an established pattern of conduct wherein she has attempted to thwart the relationship between the [father] and the minor child and has prevented, or has attempted to prevent, the [father] from spending time with, and communicating with, the minor child." As part of his objection to the mother's relocation, the father sought an award of sole physical custody of the child if the mother relocated.

On February 28, 2022, the mother responded to the father's objection and submitted a counter-petition to modify the child-custody arrangement set forth in the divorce judgment. The mother's counter-petition stated that she sought to relocate with the child. The mother also requested that the trial court establish a new visitation schedule. In the alternative, the mother petitioned the trial court to modify the divorce judgment by, among other things, modifying the father's visitation with the child. In support, she asserted that the original custody order and visitation schedule was disruptive to the child's schedule and stability with no corresponding benefit to the child and that the father was "attempt[ing] to construe or manipulate the current order and visitation schedule in a manner to harass the mother and [attempting] to thwart the relationship and communication between the mother and the minor child, none of which is in the child's best interest." Shortly before the trial, the mother and Pearl married.

The trial court held a trial on the action on July 26, 2022. At the trial, the mother testified that the new residence in Newnan in which she planned to reside with Pearl was significantly larger than her house in Anniston, noting that it was located "in an excellent school district, a very nice neighborhood." The mother, a former teacher at Weaver Elementary School in Anniston, where the child attended school, also testified as to the quality of Arbor Springs Elementary School, the child's prospective new school in Newnan, stating that Weaver Elementary School is a "Title I school" and that Arbor Springs Elementary School is not. She described a "Title I school" as a school with a large percentage of "low-income students."

The mother submitted into evidence a printout of the Arbor Springs Elementary School website ("Exhibit 11") that described "how the school functions ... their grades and how they are performing throughout the school year." The website printout contained a general "test scores" section, a "student demographics" section, student-teacher ratios, and a school-review section. The sources for this data were not identified on the exhibit, and the mother did not provide a qualified witness or custodian to testify as to the contents of Exhibit 11. The mother testified that she relied on the Arbor Springs Elementary School website information reflected in Exhibit 11 and its "GreatSchools Summary Rating" section when deciding where to move. She based her testimony about the quality of Arbor Springs Elementary School primarily on that document. Regarding the reasons she wanted to relocate the child to Newnan, she testified:

The website printout also included two school reviews purportedly from "Parent[s]/Guardian[s]." One unidentified reviewer stated, "We are truly amazed by the staff at this school. They are extremely parent friendly and empower their students to achieve their highest potential .... "

"The move is about what is in the best interest of [the child] and providing a better life for [the child], a better school, better cultural opportunities. Just all around a better neighborhood, a safer neighborhood and a bigger home to grow up in. But most importantly, it is an area that is upcoming and blooming in many areas culturally. And I want that for [the child]. But most importantly too is about school.
I love the rating of the school and how great the school is. And I've spoken with the parents around the neighborhood, and I've heard nothing but great things, as well."
(Emphasis added.)

The father objected to the admission of Exhibit 11 on the basis that the mother had not identified the printout as a potential exhibit prior to trial and that the exhibit contained hearsay. The mother did not respond to that objection by asserting either that the document was not hearsay or that an exception to the rule excluding hearsay evidence applied to the exhibit. The trial court overruled the father's objection and admitted Exhibit 11 into evidence.

Pearl, the mother's husband, testified that his move to Newnan was prompted by his job change as a general manager of an Amazon fulfillment center. When explaining the reasons why he chose to relocate to Newnan, Pearl said, "The research showed that the elementary school that is zoned for the house is significantly better educationally with test scores than Weaver Elementary, which is where [the child] is currently going to school." He testified that Arbor Springs Elementary School was "60% more favorable" than Weaver Elementary School, a statistic that was the same as the mother had said was indicated by the "GreatSchools Summary Rating" website that the mother had submitted into evidence as Exhibit 11.

In addition to the quality of the schools in Newnan, the mother emphasized the better quality neighborhoods in Newnan as compared to her neighborhood in Anniston:

"All of the benefits of moving to Newnan are great benefits to raise my child in .... compared to a home where I walk out on my porch and smell marijuana across the road or live [sic] across where we currently live ... subsidized living. And now we would be living in a very nice neighborhood, very quiet, safe, and [we can] walk out on [our] porch without hearing all of that or smelling."

Along those lines, during Pearl's testimony, the mother offered into evidence a printout of a neighborhood crime statistics website ("Exhibit 12"). This "Best Places" website was a third-party website that purported to reflect Federal Bureau of Investigation ("FBI") crime-rate statistics in different areas. Pearl testified that he relied on his research into crime statistics when deciding where to move his new family and where to accept a new job, and, according to Pearl, Exhibit 12 showed that Anniston had a significantly higher crime index than Newnan.

The website printout also included reviews purportedly from individuals describing Anniston and Newnan. One unidentified reviewer described Anniston as "your typical small, rural [A]labama town." Another reviewer described his or her experience in Newnan: "We have lived in Newnan for over a year, and I am amazed at how much it has grown. The people are very friendly, and everything you need is pretty much in one general [area] .... "

The father objected to the admission of Exhibit 12 on the basis that the mother had not identified the document before trial as a potential exhibit and that the document contained hearsay. The mother again did not respond to the father's hearsay objection. The trial court overruled the father's objection and admitted Exhibit 12 into evidence.

During his direct testimony, the father, a physical-education teacher at a school in Gadsden, testified as to the family connections that the child maintained in the Oxford area where he resided: "[M]y mother's whole side of the family is here. So _ I have all my family. My father and my mother and my aunts, uncles, cousins, [the child's] cousins. My family is her family. So, all of her -- at least my mother's side of the family is all here." The mother admitted in her testimony that her extended family lived in the "Anniston/Oxford/Talladega area," and Pearl, as well, testified that his extended family resided in the Calhoun County area. The mother admitted that she had no family in Newnan.

On August 3, 2022, the trial court entered a judgment denying the father's objection to the mother's relocation with the child. It established a new visitation schedule and provided that the father "shall have visitation as [o]rdered in the previous [judgment] with the exception that the separate Fridays with the minor child shall be discontinued due to the distance from the [father's] residence to the minor child's new residence." The trial court ordered that the father have regular contact with the child by telephone to assure that the child would have "frequent, continuing and meaningful contact" with him. Additionally, the trial court ordered that the father and the mother meet in Heflin to exchange the child during the father's visitation periods.

The mother moved to amend or clarify the judgment, and on August 16, 2022, the trial court amended its judgment, writing:

"The [father] shall have visitation as [o]rdered in the previous [judgment] with the following two exceptions: (1) That the [father's] every other weekend visitation shall be from Friday at 6:00 p.m. to the following Sunday at 6:00 p.m. (2) That the separate Fridays with the minor child shall be discontinued due to the distance from the [father's] residence to the minor child's new residence."

The father filed a motion to alter, amend, or vacate the judgment, which the trial court denied. The father then timely filed a notice of appeal.

Standard of Review

A trial court's judgment based on ore tenus evidence will be presumed correct and will not be reversed on appeal, absent a showing that the trial court acted outside its discretion or that the judgment is unsupported by the evidence so as to be plainly and palpably wrong. See Scholl v. Parsons, 655 So.2d 1060, 1062 (Ala. Civ. App. 1995). This court has a duty to uphold the trial court's judgment "if it is fairly supported by credible evidence, 'regardless of our own view of that evidence or whether we would have reached a different result had we been the trial judge.'" Griggs v. Griggs, 638 So.2d 916, 919 (Ala. Civ. App. 1994) (quoting Young v. Young, 376 So.2d 737, 739 (Ala. Civ. App. 1979)). We review issues of law de novo. See Henderson v. Henderson, 978 So.2d 36, 39 (Ala. Civ. App. 2007). Trial court evidentiary rulings are "generally left to the discretion of the trial court, and the trial court's determination on [those] question[s] will not be reversed except upon a clear showing of abuse of discretion." Ex parte Loggins, 771 So.2d 1093, 1103 (Ala. 2000).

Analysis

The father contends that sufficient evidence does not support the trial court's judgment permitting the mother to relocate with the child. He also contends that the trial court erred in admitting Exhibits 11 and 12 because they contained hearsay. We find the father's second contention dispositive of this appeal and therefore pretermit consideration of the first.

The mother's request to relocate with the child is governed by the Alabama Parent-Child Relationship Protection Act ("the Act"), § 30-3-160 et seq., Ala. Code 1975 ("the Act"). The Act's purpose is to "promote[] the general philosophy in this state that children need both parents, even after a divorce." § 30-3-160. Provisions contained within the Act are "intended to discourage unnecessary relocations by custodial parents that would make the maintenance of relationships between a child and both of his or her parents less likely or less fully realized." Toler v. Toler, 947 So.2d 416, 424 (Ala. Civ. App. 2006) (Murdock, J., concurring specially). Among other things, the Act imposes "a rebuttable presumption that a change of principal residence of a child is not in the best interest of the child." § 30-3-169.4. It further provides that "[t]he party seeking a change of principal residence of a child shall have the initial burden of proof on the issue," and that, "[i]f that burden of proof is met, the burden of proof shifts to the non-relocating party." Id. The Act sets forth sixteen specific factors that a trial court may consider when deciding whether a change of custody is in the child's best interest, including, among other things, "the likely impact the change of principal residence of a child will have on the child's physical, educational, and emotional development," and "[w]hether 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." § 30-3-169.3(a)(2) and (11).

Much of the mother's case for relocating with the child to Newnan focused on the purported educational benefits to the child moving from Weaver Elementary School to Arbor Springs Elementary School, as well as the purportedly lower crime rates in Newnan when compared to Anniston. Exhibits 11 and 12 were key to establishing the mother's case in these regards. Both documents, we conclude, contained inadmissible hearsay.

There are limits to the discretion of the trial court when admitting evidence into the record, including admission of evidence containing inadmissible hearsay. Queen v. Belcher, 888 So.2d 472, 477 (Ala. 2003). Rule 801(c), Ala. R. Evid., defines "hearsay" as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." A hearsay statement is inadmissible unless it falls under a specific exception enumerated in Rules 803 or 804, Ala. R. Evid. See Rule 802, Ala. R. Evid.

In the present case, Exhibit 11, a printout of the Arbor Springs Elementary School website, contained out-of-court statements regarding the quality of education at that school. Specifically, the printout contained facts and figures about the school purporting to reflect that the school had "far above" state average test scores, an above-average "student academic progress" score, and an above-average "equity" score.

The mother contends on appeal that Exhibit 11 is not hearsay because she did not offer it to prove the truth of the matter asserted in that exhibit. Instead, she argues, she offered it to explain the extensive efforts in which Pearl and she had engaged "to research the area of relocation and to select a home located in a school district that would provide a superior educational experience for the child." The transcript of the trial plainly demonstrates, however, that the mother offered Exhibit 11 not to prove that she and Pearl had conducted research on the educational opportunities in Newnan, an assertion for which admission of Exhibit 11 would have been unnecessary, but, instead, to prove that Arbor Springs Elementary School provides an education that was superior to the education that Weaver Elementary School offers based on the data set out in the exhibit. For example, she testified specifically that she relied on the information reflected in the exhibit when deciding where to move and where to relocate the child, stating: "I rely on [the GreatSchools's website] as a parent, and as a teacher. I think it's important to know how the school functions and how the school -- their grades and how they are performing throughout the school year." She noted, based on the information contained in the exhibit, that Arbor Springs Elementary School "is clearly performing much higher than Weaver Elementary is. They are scoring an eight out of ten, which is 60% higher than Weaver Elementary is scoring on test scores in equity, just the school improvement, student progress."

In the face of the father's timely hearsay objection to the admission of Exhibit 11, the mother failed to identify any hearsay exceptions applicable to Exhibit 11, see Rules 803 and 804, Ala. R. Evid. (providing exceptions to the inadmissibility of hearsay), nor does she contend in this court that any such exceptions apply. Our own review of Exhibit 11 and the evidentiary rules relating to hearsay fails to disclose any basis for admitting the exhibit into evidence over the father's objection.

We reach the same conclusion regarding the trial court's admission of Exhibit 12 into evidence. That exhibit, a printout of the "Best Places" neighborhood-crime-statistics website that purported to reflect FBI crime-rate statistics for different areas, also contained out-of-court statements that the mother offered for the purpose of proving what they asserted, specifically that the crime rates in Newnan were far lower than the crime rates in Anniston. Like Exhibit 11, the trial court admitted Exhibit 12 into evidence despite the father's timely hearsay objection. And, as with Exhibit 11, we can discern no applicable exception to the hearsay rule that would have permitted its introduction into evidence over the father's hearsay objection.

The fact that the trial court erred in admitting Exhibits 11 and 12 does not, in itself, render the trial court's judgment subject to reversal, however. Under Rule 45, Ala. R. App. P., a judgment may be reversed for the erroneous admission or rejection of evidence only if that error "has probably injuriously affected substantial rights of the parties." Rule 45, Ala. R. App. P. Put another way, this court will not reverse a judgment based on error we conclude was harmless. Here, we conclude that the trial court's error in admitting Exhibits 11 and 12 was not harmless.

The mother argues that the admission of Exhibits 11 and 12 was harmless because those exhibits contained evidence that was merely cumulative of testimony that Pearl and she offered at trial. It was not. The information about Arbor Springs Elementary School contained in Exhibit 11 was far more detailed than the testimony the mother offered about that school prior to the admission of that exhibit over the father's objection. Also, the testimony comparing the schools that the mother and Pearl offered after the trial court overruled the father's objection to admission of that document appears to have derived specifically from Exhibit 11, rather than from a separate source of information. As to Exhibit 12, the mother points to testimony of some minor crime in the Anniston area and testimony that Newnan was a safer area in which to live, but none of that testimony reflected the specific details about the crime rates in Anniston and Newnan contained in Exhibit 12. As a result, Exhibit 12, like Exhibit 11, could hardly be said to be cumulative of the testimony offered at trial. See Jones v. State, 570 So.2d 775, 779 (Ala.Crim.App.1990) (holding that trial court abused its discretion in admitting hearsay testimony when "bulk" of hearsay testimony was not cumulative of other evidence).

Not only was the hearsay evidence provided in Exhibits 11 and 12 not cumulative of other testimony offered, that evidence formed a significant basis for the mother's stated reasons for seeking to relocate the child. Indeed, the mother specifically testified that the information from Exhibit 11 was one of the most important aspects in her decision to seek to relocate with the child to Newnan; she stated: "But most importantly too is about school. I love the rating of the school and how great the school is." Pearl, in turn, testified specifically about the crime rates in Newnan and Anniston set forth in Exhibit 12, bolstering the mother's testimony that she sought to relocate to Newnan because it was safer than Anniston. Given the importance of the inadmissible evidence to the mother's case, we cannot conclude that the trial court did not take that evidence into consideration when reaching its judgment. In fact, we assume that it did. See Dunbar v. Birmingham Trust Nat. Bank, 286 Ala. 168, 173, 238 So.2d 336, 341 (1970) ("When an equity court overrules an objection to a question, it is to be assumed that such evidence was considered by the court, and if the ruling was erroneous, a reversal is warranted.").

Indeed, the trial judge stated near the end of the trial that he had "heard evidence about the school, and [he took] that into consideration."

In Chapa v. Chapa, 491 So.2d 969, 970 (Ala. Civ. App. 1986), this court, quoting our supreme court's decision in Liberty National Life Insurance Co. v. Harrison, 274 Ala. 43, 48, 145 So.2d 219, 223 (1962), wrote:

"'It has long been the rule that where a cause is tried by the court without a jury, the admission of illegal evidence raises the presumption of injury, and requires the reversal of the judgment unless the remaining evidence is without conflict and is sufficient to support the judgment.'"
See also Odell v. Myers, 52 Ala.App. 558, 562, 295 So.2d 413, 415 (Ala. Civ. App. 1974) ("It is the rule, in a case at law tried without a jury that admission of illegal evidence over objection requires a reversal unless the remaining evidence is without conflict and sufficient to support the judgment."); Dunbar, 286 Ala. at 174, 238 So.2d at 342 (1970). Here, our review of the record fails to disclose that the remaining, admissible evidence the parties offered was both without conflict and fully supportive of the trial court's judgment. Thus, we cannot say that the trial court would have permitted the mother to relocate with the child were it to have disregarded Exhibits 11 and 12, and, as a result, we cannot conclude that the improper admission of those exhibits was harmless error. See Ex parte American Color Graphics, Inc., 838 So.2d 385, 389 (Ala. 2002) (holding that a trial court's reliance on inadmissible evidence "precludes the possibility that its admission was harmless error").

Conclusion

The trial court erred when it admitted into evidence Exhibits 11 and 12 over the father's hearsay objections. Because we cannot conclude that the trial court's error in doing so was harmless, we reverse the trial court's judgment and remand the cause to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

Moore, Edwards, and Hanson, JJ., concur.

Thompson, P.J., dissents, with opinion.

THOMPSON, Presiding Judge, dissenting.

I respectfully dissent from the main opinion's conclusion that the Talladega Circuit Court ("the trial court") committed reversible error.

John Paul Madrigal ("the father") contends on appeal that his substantial rights were probably injuriously affected by the improper admission of hearsay evidence because, he says, the trial court relied on that inadmissible hearsay evidence to support its judgment that it was in the best interest of the parties' child E.B.M. ("the child") to relocate. The father insists that without consideration of the inadmissible hearsay evidence, Courtney Hammett Madrigal ("the mother") did not present sufficient evidence to rebut the presumption that relocation was not in the child's best interest and the trial court's judgment must be reversed.

"In order for the admission of evidence to be reversible error, 'the error complained of [must have] probably injuriously affected [the] substantial rights of the parties.' Rule 45, Ala. R. App. P. The burden is with the appellant not only to show error, but also to show probable injury. Wallace v. Phenix City, 268 Ala. 413, 108 So.2d 173 (1959)."
Dinmark v. Farrier, 510 So.2d 819, 821 (Ala. 1987).

I agree with the father that the mother's Exhibits 11 and 12, which were admitted into evidence, constitute inadmissible hearsay evidence because those documents provide greater detail about the educational benefits of the proposed school and the lower crime rate in the proposed relocation area than the testimony of the mother and Ryan Pearl, the mother's husband. However, I disagree with the father that the improper admission of that evidence "probably injuriously affected [his] substantial rights." Rule 45, Ala. R. App. P.

My review of the record indicates that the trial court had sufficient nonhearsay evidence before it to support its determination that relocation was in the best interest of the child. The mother and Pearl testified that the child's current residence was in an area where the child could walk out of the door and smell marijuana. From this evidence indicating the use of an illegal substance in the child's current neighborhood, the trial court could have inferred that the child's current residence was not in a safe area. According to the mother's testimony, the proposed residence was in a quiet neighborhood that had a swimming pool in which the child liked to swim and a park where the child liked to play. From this evidence and the mother's testimony indicating that the child enjoyed walking her dog to the park in the neighborhood, the trial court could have inferred that the proposed residence was in a safe, child-friendly neighborhood. Additionally, Pearl testified, without reading or reviewing the mother's Exhibit 12, which was a document comparing the crime rate in the city near the child's current residence with the crime rate of the city where the proposed residence was located, that the crime rate in the city near the child's current residence was significantly worse than the crime rate of the city of the proposed residence.

Regarding the proposed school for the child, the mother, who is a teacher, testified without objection that

"[i]t is an excellent school, Arbor Springs Elementary. And it is in a highly, sought-after school district of Coweta County. And this school rates very highly compared to the school she's currently in in Weaver, Alabama. This school is 60% higher than Weaver Elementary, with scores of eight out of ten for test scores. ... [L]ots of good feedback, just an excellent school that -- the best she can attend.
"...
"... And you know, I love Weaver [Elementary], I do, but there is a drastic difference in education and test scores."

The mother further testified that "[she had] spoken with parents around the [proposed] neighborhood, and I've heard nothing but great things [about the school.]" Likewise, Pearl explained that before he purchased the proposed residence, he researched the schools in the area and found that "the elementary school that is zoned for the house is significantly better educationally with test scores than Weaver Elementary, which is where [the child] is currently going to school." I acknowledge that the inadmissible hearsay evidence bolstered the mother's and Pearl's testimony. The father, however, did not object to the admissible testimony from the mother and Pearl concerning the benefits of the relocation and did not offer any evidence to dispute the admissible testimony that the proposed neighborhood was safer and more child-friendly or that the proposed school had higher test scores. Instead, when asked his biggest concern about the proposed relocation, the father responded that he was concerned about the impact that the distance would have on his relationship with the child. Additionally, I note that when the father's counsel objected to the admission of Exhibit 12, the trial court stated: "I'm going to let that in for what it is worth." Considering this comment, and the lack of findings of fact in the trial court's judgment, I question whether the trial court, although it admitted the exhibit, considered the document to contain material information. Further, because the father did not object to or dispute the evidence admitted regarding the benefits of the proposed neighborhood and the proposed school, I find the inadmissible evidence cumulative, at least in part, of the admissible evidence. See Black's Law Dictionary 577 (7th ed. 1999) (defining cumulative evidence as evidence "that supports a fact established by the existing evidence"); and 66 C.J.S. New Trial § 143 (1998) (defining cumulative evidence as "[e]vidence of the same kind to prove the same probative fact").

Our standard of review for a judgment that is rendered based on ore tenus evidence and does not include any findings of fact is well established.

"'When ore tenus evidence is presented, a presumption of correctness exists as to the trial court's findings on issues of fact; its judgment based on these findings of fact will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. J &M Bail Bonding Co. v. Hayes, 748 So.2d 198 (Ala. 1999); Gaston v. Ames, 514 So.2d 877 (Ala. 1987). When the trial court in a nonjury case enters a judgment without making specific findings of fact, the appellate court "will assume that the trial judge made those findings necessary to support the judgment." Transamerica Commercial Fin. Corp. v. AmSouth Bank, 608 So.2d 375, 378 (Ala. 1992). Moreover, "[u]nder the ore tenus rule, the trial court's judgment and all implicit findings necessary to support it carry a presumption of correctness." Transamerica, 608 So.2d at 378.'
"City of Prattville v. Post, 831 So.2d 622, 627-28 (Ala. Civ. App. 2002)."
Taylor v. Taylor, 121 So.3d 987, 992-93 (Ala. Civ. App. 2012).

Considering as we must the foregoing admissible evidence in a light most favorable to the mother, see Taylor, supra, presuming as we must that the trial judge knew that the hearsay evidence was inadmissible and upon reflection recognized that the evidence was hearsay and followed the law by disregarding the improperly admitted evidence, see Anderson v. Anderson, 199 So.3d 66, 69 (Ala. Civ. App. 2015), assuming as we must that the trial court implicitly made the necessary findings of fact to support its judgment based on admissible evidence, see Knight v. Knight, 53 So.3d 942, 949 (Ala. Civ. App. 2010), and recognizing as we must that it is an appellate court's duty to affirm a trial court's judgment if there is credible evidence to support the judgment, see Cheshire v. Cheshire, 296 So.3d 851 (Ala. Civ. App. 2019), I conclude that the record contains sufficient admissible evidence to support the trial court's determination that the presumption that the change in residence was not in the best interest of the child was rebutted. In this case, the admission of the hearsay evidence likely had no effect on the trial court's judgment, was harmless, and did not create reversible error. Accordingly, because credible evidence supports the trial court's judgment, I conclude that the father did not meet his burden of showing probable injury and I would not reverse the trial court's judgment.


Summaries of

Madrigal v. Madrigal

Court of Civil Appeals of Alabama
Nov 9, 2023
No. CL-2022-1265 (Ala. Civ. App. Nov. 9, 2023)
Case details for

Madrigal v. Madrigal

Case Details

Full title:John Paul Madrigal v. Courtney H. Madrigal

Court:Court of Civil Appeals of Alabama

Date published: Nov 9, 2023

Citations

No. CL-2022-1265 (Ala. Civ. App. Nov. 9, 2023)