Opinion
AV93000391.
March 10, 1995.
Appeal from the Circuit Court, Jefferson County, Robert Teel, J.
Carol Ann Rasmussen, Birmingham, for appellant.
John F. McDaniel and Jack M. Bains, Jr. of McDaniel, Hall, Conerly Lusk, P.C., Birmingham, for appellee.
The parties were divorced in October 1991. The mother was awarded custody of the parties' two minor daughters. In January 1993 the father filed a petition to modify custody, alleging that the children lacked supervision and medical attention, that the older child was making poor grades in school, that the mother was not signing the children's school work, and that the mother did not spend quality time with the children. Following a hearing on the motion, the trial court entered an order, providing, in pertinent part, the following: "the best interests of the minor children . . . would be best served by placing all care, custody and control of said minor children with the natural father . . . and . . . such change in custody is in the material benefit of such minor children."
The mother appeals and asserts that the trial court erred in changing custody to the father.
When there is a prior custody decree, the parent seeking the change in custody has a very stringent burden of proof. Merely showing that a material change in circumstances has occurred since the last decree is not sufficient. While the best interests of the child are paramount, the petitioner must show that a change in custody will materially promote the child's best interests and that the benefits of the requested change will more than offset the inherently disruptive effect caused by uprooting the child. Ex parte McLendon, 455 So.2d 863 (Ala. 1984); King v. King, 636 So.2d 1249 (Ala.Civ.App. 1994).
The facts in this case are not easily discernible. There is no transcript of the hearing. Rather, the mother filed a Rule 10, Ala.R.App.P., reconstruction of the testimony. The father objected to parts of the mother's reconstruction and submitted a partial recollection of the pertinent testimony. Appended to the father's reconstruction of each witness's testimony was the following footnote: "Without recounting all of this witness's testimony, [the father] will simply supplement the trial testimony offered by [the mother] and make necessary corrections. Otherwise, [the father] will consent to the reconstruction proffered by the [mother]." The parties submitted their Rule 10, Ala.R.App.P., petitions to the trial court. The trial court found that "[t]he Reconstruction of Trial Testimony as filed by the [father] more accurately represents the testimony as the Court remembers it." As noted before, the father's reconstruction is only a partial reconstruction.
While the trial court is afforded great discretion in determining matters of child custody, its judgment is subject to reversal if shown to be plainly and palpably wrong. King. We have reviewed the confusing record before us and cannot say that the evidence presented clearly supported a change in custody under the McLendon standard. Furthermore, it appears from the trial court's order that only the initial burden in McLendon was applied. There was no finding by the trial court that the benefits of the requested change would more than offset the inherently disruptive effect caused by uprooting the children. Likewise, there was no evidence presented to support such a finding. We are unable to ascertain from the court's order if the proper standard was even employed by the court in reaching its decision.
Due to the confusing record before us, and our inability to ascertain if the proper standard was employed, we reverse the judgment of the trial court and remand the cause to allow the court to evaluate the evidence in accordance with McLendon.
This case exemplifies the difficulty an appellate court encounters when disputed oral testimony is presented for review by a Rule 10, Ala.R.App.P., reconstruction of the evidence. It is particularly difficult in cases of modification of child custody. Rule 10(d), Ala.R.App.P., does not anticipate that cases will be intentionally tried without the presence of a court reporter, but it is a measure to allow a review if there was no reporter available or if an appeal was not anticipated at trial.
The foregoing opinion was prepared by Retired Appellate Judge L. Charles Wright while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Code 1975.
REVERSED AND REMANDED.
ROBERTSON, P.J., and YATES and MONROE, JJ., concur.
THIGPEN and CRAWLEY, JJ., dissent.
In the instant case, there were at least two ore tenus proceedings on the multiple claims before the trial court entered its final judgment. In his petition to change custody, the father specifically pled that there had been a change of circumstances affecting the children's welfare which required that custody be changed to him. He also pled that the children's best interest would be promoted by the change of custody. In its judgment granting the father's petition, the trial court expressly stated that it carefully and consciously weighed all the evidence presented, including the testimony of numerous witnesses. It ultimately determined that a change in custody would materially benefit the children.
This court is an error-correcting court and does not presume error. It is my position that the appellant here has failed to carry the "burden of ensuring that the record contains sufficient evidence to warrant a reversal." In re Matter of Coleman, 469 So.2d 638, 639 (Ala.Civ.App. 1985). In the absence of a transcript of the trial evidence or an acceptable substitute for appellate review, this court is "required to conclusively presume that the final judgment of the trial court was supported by the ore tenus testimony." Mitchell v. Mitchell, 506 So.2d 1009, 1010 (Ala.Civ.App. 1987).
As noted by the majority, an appellate court encounters difficulty reviewing disputed oral testimony presented in evidentiary reconstructions pursuant to Rule 10(d), A.R.App.P. The confusion created by the shortcomings of this reconstruction leaves little for appellate review, and, in my opinion, requires this court to review this judgment with the same favorable presumption that attaches to a judgment that has no reviewable evidence presented on appeal. We are bound to presume that the judgment of the trial court was supported by the law and the evidence presented to it. Rudolph v. Rudolph, 586 So.2d 929 (Ala.Civ.App. 1991). It is a conclusive presumption that the absent testimony supports the trial court's judgment. English v. English, 352 So.2d 454 (Ala.Civ.App. 1977).
Additionally, when a trial court does not make specific findings, we must assume that it made those findings necessary to support its judgment, unless those findings would be clearly erroneous. Ward v. State, 592 So.2d 581 (Ala. 1992); Ex parte Walters, 580 So.2d 1352 (Ala. 1991); Knox Kershaw, Inc. v. Kershaw, 552 So.2d 126 (Ala. 1989).
Accordingly, I would affirm this case. Therefore, I must respectfully dissent.
CRAWLEY, J., concurs.