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McLendon v. Mills
Citation: 204 So. 3d 361Docket: 2140389
Court: Court of Civil Appeals of Alabama; July 10, 2015; Alabama; State Appellate Court
Jami L. McLendon appeals a judgment from the Crenshaw Circuit Court that denied her petition to modify custody of her three children from her marriage to John David Mills, Jr. The circuit court confirmed a prior judgment from March 21, 2012, which granted joint custody to both parents. In May 2013, McLendon sought a custody modification, citing changes in circumstances, and in June 2013, she requested emergency custody due to safety concerns regarding one child while in the father's care. After an ore tenus proceeding on October 21, 2014, the court concluded on January 3, 2015, that McLendon did not meet the standard for custody modification established in Ex parte McLendon, 455 So.2d 863 (Ala. 1984), and denied her request. McLendon subsequently filed a motion to alter or vacate the judgment, arguing the court had misapplied the standard and that the best-interest standard from Ex parte Couch, 521 So.2d 987 (Ala. 1988), should apply. The circuit court denied this motion on February 4, 2015, asserting it had applied the appropriate standard and that even under the best-interest standard, there wasn't sufficient evidence to change custody. On February 9, 2015, McLendon filed a notice of appeal, challenging the use of the McLendon standard and asserting her entitlement to custody under the best-interest standard. The appellate court noted that while the circuit court erred in applying the McLendon standard, this error was harmless as the court had indicated it would not have changed custody even under the correct standard. The judgment was affirmed despite the misapplication, as the circuit court’s reasoning indicated no change would have occurred based on the evidence presented. Testimony revealed significant communication issues between the parents, with the father relying on his mother for communication with McLendon and the mother frequently involving police during custody exchanges. The father did not dispute claims that he often kept the children during McLendon's custodial weeks. The father testified that he did not force the children to visit their mother if they did not want to go, citing their fear of the mother's fiancé, V.F. The mother acknowledged that V.F. had physically disciplined the children. Reports of physical abuse against the mother and V.F. were made to the Department of Human Resources (DHR) by the father and paternal grandmother, but DHR found no evidence of abuse. The father reported seeing bruises on the children that resembled belt marks, although he admitted DHR's findings were inconclusive. Tensions between the father and V.F. included aggressive discussions about the children's bruises and two physical altercations between them, neither of which resulted in police intervention; the father was found not guilty of domestic violence related to one incident. The mother stated that the paternal grandmother primarily cared for the children during the father's custody, but also described him as a good father. The father confirmed the grandmother’s significant role in caregiving. The mother provided the children's health insurance and attended their medical appointments, while both parents accused each other of neglecting to provide medications during custody exchanges. At the time of the hearing, the children were aged six, five, and four. The father did not pay for private school, preferring public education, while the mother claimed the children had excessive absences during the father's custody, which he denied, though he later acknowledged 25 absences within four months for the six-year-old. The father's lack of concern about these absences and the mother's unsubstantiated claims regarding their timing weakened her position. While both the father and V.F. exhibited violent tendencies, there was no evidence indicating harm to the children. The mother's allegations about school attendance were deemed unconvincing. Although communication issues between the parents suggested a potential benefit to changing custody, the mother failed to prove that such a change would serve the children's best interests. The circuit court, applying the best-interest standard, found sufficient evidence to deny the mother's custody modification request, which was affirmed by the court.