Ex Parte Bryowsky
Ex Parte Bryowsky
Opinion
Angela Dawn Gann Bryowsky and Allan Dyoll Gann were divorced in January 1992. The trial court adopted the parties' divorce agreement as part of its judgment of divorce. That agreement granted to the parties the joint legal custody of their minor child; however, physical custody of the child was vested in the mother.1 Following the divorce, the *Page 1324
parties entered into an informal arrangement whereby the minor child actually spent about half his time with his mother and half with his father. Because of the mother's work schedule, this arrangement benefited the parties and the child. In December 1993, after learning that the mother was planning to remarry and move with the child to Mississippi, the father petitioned to have the divorce judgment modified so as to allow him to have physical custody of the child. After an ore tenus
hearing wherein numerous witnesses testified, including the child, both parties, character witnesses, relatives, and professionals who had taught, tested, and worked with the child, the trial court entered a judgment for the mother. The father appealed to the Court of Civil Appeals, which reversed the judgment and remanded the case with instructions for the trial court to enter a judgment awarding custody to the father. See Gann v. Bryowsky,
When evidence in a child custody case has been presentedore tenus to the trial court, that court's findings of fact based on that evidence are presumed to be correct. The trial court is in the best position to make a custody determination — it hears the evidence and observes the witnesses. Appellate courts do not sit in judgment of disputed evidence that was presented ore tenus before the trial court in a custody hearing. See Ex parte Perkins,
" 'Our standard of review is very limited in cases where the evidence is presented ore tenus. A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, Payne v. Payne,
550 So.2d 440 (Ala.Civ.App. 1989), and Vail v. Vail,532 So.2d 639 (Ala.Civ.App. 1988), and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong, or unless an abuse of the trial court's discretion is shown. To substitute our judgment for that of the trial court would be to reweigh the evidence. This Alabama law does not allow. Gamble v. Gamble,562 So.2d 1343 (Ala.Civ.App. 1990); Flowers v. Flowers,479 So.2d 1257 (Ala.Civ.App. 1985).' "
It is also well established that in the absence of specific findings of fact, appellate courts will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous. See the cases collected at 3 Ala. Digest 2d Appeal Error § 846(5) (1993).
There are two different standards for reviewing custody arrangements. If custody has not previously been determined, then the "best interest of the child" standard is appropriate.Ex parte Couch,
The mother contends that the reliance by the Court of Civil Appeals on Ex parte Couch in support of its application of the "best interest of the child" standard was misplaced. She argues that the more stringent McLendon standard should have been applied because she had previously been granted physical *Page 1325 custody of the child in the parties' divorce judgment. She also contends that the record does not support the conclusion reached by the Court of Civil Appeals that the trial court's judgment is clearly erroneous. We agree.
The Court of Civil Appeals correctly noted that theMcLendon standard does not always apply in joint custody situations. However, Ex parte Couch involved joint legal custody and shared physical custody of the children where nojudicial determination had been made preferring either parent.
Therefore, when the father in Ex parte Couch sought custody, we applied the "best interest of the child" standard because under the particular facts of that case both parents were on equal ground in attempting to gain custody of the children. In the present case, the parties had joint legal custody, but a previous judicial determination had granted physical custody to the mother. This distinguishes this case from Ex parte Couch.
See Blackmon v. Scott,
As previously noted, the trial court's judgment followed extensive testimony, much of which was disputed, concerning the respective lifestyles of the mother and the father; their respective abilities to provide for the child's emotional, social, moral, material, and educational needs; and the family support that was available to the parents in caring for the child. The Court of Civil Appeals noted that "[t]he record reveals that both parents love [the child] very much and that both parents can provide for his material needs."
Neither the Court of Civil Appeals nor this Court is allowed to reweigh the evidence in this case. This case, like all disputed custody cases, 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 (at one point in its opinion the Court of Civil Appeals stated that witness Susan Brown was the only "impartial witness" with respect to the question whether the child's behavior and ability to concentrate had improved on medication;
For the foregoing reasons, the judgment of the Court of Civil Appeals is reversed and the case is remanded for an order or proceedings consistent with this opinion.
REVERSED AND REMANDED.
HOOPER, C.J., and MADDOX, SHORES, KENNEDY, INGRAM, and BUTTS, JJ., concur.
COOK, J., concurs in the result.
"[T]he parties shall have joint custody of the minor child . . ., with physical custody to be vested with the wife."
The agreement went on to set out the father's visitation rights.
Reference
- Full Case Name
- Ex Parte Angela Dawn Gann Bryowsky. (In Re Allan Dyoll Gann v. Angela Dawn Gann Bryowsky).
- Cited By
- 313 cases
- Status
- Published