Daniel Colby Courson v. Heather C. Hurston

Rel: August 22, 2025

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
SPECIAL TERM, 2025
_________________________

CL-2024-0897
_________________________

Daniel Colby Courson

v.

Heather C. Hurston

Appeal from Russell Circuit Court
(DR-17-900165.02)

EDWARDS, Judge.

Daniel Colby Courson ("the father") appeals from an August 26,

2024, judgment entered by the Russell Circuit Court ("the trial court").

That judgment modified a previous custody-modification judgment

entered by the trial court on May 24, 2023 ("the May 2023 custody-
CL-2024-0897

modification judgment") by awarding Heather C. Hurston ("the mother")

sole physical custody of the parties' two sons, B.C. ("the older son") and

C.C. ("the younger son"); the older son and the younger son are sometimes

referred to collectively as "the children." The record reveals the following

pertinent procedural history.

Pursuant to the May 2023 custody-modification judgment, the

father and the mother had been awarded joint legal custody of the

children, and the father had been awarded sole physical custody of the

children, subject to the mother's right to specified visitation. On June 13,

2023, the mother filed a postjudgment motion to alter, amend, or vacate

the May 2023 custody-modification judgment or, in the alternative, for a

new trial. Despite conducting a hearing, the trial court did not enter an

order on the mother's postjudgment motion, and the mother's

postjudgment motion was denied by operation of law on September 11,

2023. See Rule 59.1, Ala. R. Civ. P.

On September 20, 2023, not quite four months after the trial court

entered the May 2023 custody-modification judgment and just over a

week after her postjudgment motion was denied by operation of law, the

mother filed a petition seeking to modify the custody of the children.

2
CL-2024-0897

Invoking Ex parte McLendon, 455 So. 2d 863 (Ala. 1984), the mother

asserted in her petition that there had been a material change in

circumstances since the entry of the May 2023 custody-modification

judgment. The mother alleged that the father had alienated the children

from her; that, as she had argued in the custody-modification trial held

in April 2023, Carol Childs ("the paternal grandmother") was the

children's actual primary caregiver; and that Childs would not

communicate with her regarding the children. The trial court conducted

a two-day trial on July 24, 2024, and August 9, 2024, and heard testimony

from the mother and the father. The following information was revealed

at trial.

The mother testified that she lived in Cedartown, Georgia, and that

she had remarried in 2021, before the entry of the May 2023 custody-

modification judgment. She testified that she was employed at the time

of the 2024 modification trial as a medical receptionist and that she

worked 10-hour shifts 4 days each week.1 The father, who is a

landscaper, indicated that he still maintained the same employment and

work schedule that he had had in May 2023. The father testified that he

1The mother indicated that she worked Tuesday through Friday.

3
CL-2024-0897

typically left for work at 6:47 a.m. and returned home by 4:30 p.m. He

testified that he still resided in the same residence in Phenix City in

which he had been residing at the time of the entry of the May 2023

custody-modification judgment and that he resided there with the

children; the paternal grandmother; the paternal grandmother's

husband, Brian Childs ("the paternal stepgrandfather"); and the father's

cousin, Abbey Gualtney ("the paternal cousin"). He testified that the

paternal grandmother was responsible for taking the children to school

in the mornings and picking them up in the afternoons.

The mother's testimony largely focused on her general displeasure

with the father's coparenting after the conclusion of the April 2023

custody-modification trial. She testified that she believed that the father

had not adequately communicated with her regarding the children and

had not always responded to her numerous and repetitive inquiries

regarding the children; the father acknowledged that he had not always

responded to the mother's messages. The record indicates that the

parties' coparenting issues had been a focus of the previous custody-

modification action. The record also indicates that the parties had

4
CL-2024-0897

steadily improved their communication and coparenting skills since the

entry of the May 2023 custody-modification judgment.

The record indicates that the May 2023 custody-modification

judgment provided that the mother was to have a "right-of-first-refusal"

regarding caring for the children when the father was unable to do so.

The mother asserted that the father had allowed the children to remain

with the paternal grandmother when he was unable to provide care for

the children at least three times without consulting her first. The mother

further noted that, on days that the children were sick or were otherwise

not in school, the father had allowed the paternal grandmother to care

for the children without offering the mother the opportunity to care for

them.

The record also reflects that the father had permitted the mother

to exercise expanded visitation in September and October 2023 and in

February and March 2024. The father testified that he had accepted the

mother's proposed summer-visitation schedule in 2023 and had

cooperated with the mother in devising a summer-visitation schedule for

the children in 2024. Both of those summer schedules appear to have

5
CL-2024-0897

expanded the mother's visitation. The mother admitted that the father

had not prevented her from exercising her visitation with the children.

The mother expressed concern that, in August 2023, the father had

provided the older son with a new cellular telephone that had been

previously owned by the paternal stepgrandfather. 2 The mother testified

that her telephone number had not been programmed into the telephone

and that her number had been blocked from calling the older son's

telephone. The father testified that the paternal cousin had programmed

the telephone and that he had not had an opportunity to check the

telephone before the children's scheduled visitation with the mother

following the older son's acquisition of the telephone. He also testified

that he had not blocked the mother's telephone number once it was

programmed into the telephone and that he and several family members

had attempted to correct the issue; the father said that eventually he had

taken the telephone to Verizon Wireless, the telephone's service provider,

and that it was discovered that a feature had been enabled that

2The record indicates that this telephone is the older son's second

cellular telephone.

6
CL-2024-0897

forwarded the mother's telephone calls to the older son's voicemail inbox.3

The father testified that, during the period the cellular telephone would

not receive calls from the mother's cellular number, the mother had still

been able to call the older son on his tablet and that the older son had

been permitted to go to a different room so that he could speak to the

mother in private.

The mother and the father both testified that the older son had

accessed inappropriate material on a previous telephone. As a result, the

mother had requested the passcode to the older son's new telephone and

had prohibited the older son from bringing the telephone to visitations

until she had obtained the passcode. She testified that the father had

failed to provide that passcode to her. The father testified that he had

provided the passcode to the older son's telephone to the mother and that

she had continued to ask for the passcode to make it appear that he had

not cooperated with her. The mother also testified that the older son had

sent a "coded" text message to the father; the older son had sent the word

"blue" to the father, prompting the father to ask the older son if

3The father testified that he had taken the telephone to Verizon

Wireless on August 8, 2024, the day before the second trial date.
7
CL-2024-0897

something was wrong. The father denied having used any form of code

when he communicated with the children.

The mother also testified that she believed that the father had not

adequately monitored and participated in the children's education. 4 The

record reveals that, at some point during the 2023-2024 school year, both

children's grades had fallen, with the older son earning "C" level grades

and the younger son earning lower grades. Both parents indicated that

the children were capable of higher grades. The mother asserted in her

testimony that the father had not taken an active role in the children's

education after he had been awarded sole physical custody of the children

and that he had failed to verify that the children were completing their

homework assignments. 5 The father testified that he had "worked hard"

with the children on their schoolwork and that, after their grades had

fallen, he had increased the amount of time he worked with the children

4At the time of the July 2024 custody-modification trial date, the

older son had completed the fifth grade, and the younger son had
completed the second grade. Both children had been promoted to their
respective next grade levels.

5Both parents testified that the homework assignments were not a

component of the children's final grades.

8
CL-2024-0897

on their schoolwork each night. As a result, the father testified, the

children's grades had improved after February 2024. 6 The mother

testified that, if she were awarded sole physical custody of the children,

they would attend schools that were in session four days each week

instead of five days each week. 7 The mother further explained that she

would be able to better provide for and monitor the children's education

if the children attended school in Georgia because, she said, she did not

work on Mondays, which coincided with the day that the children would

not attend school. Thus, the mother asserted, she would be able to spend

more time with the children and better supervise their educations.

6The children's declining grades were discussed in a February 2024

pendente lite hearing.

7According to the mother, the Georgia schools that the children
would attend if they were placed in her custody start and end at
approximately the same time each day as the Alabama schools the
children were attending at the time of the custody-modification trial. The
record does not indicate whether the Georgia school year commences
earlier in the year or concludes later in the year than does the school year
at the children's current schools. The mother did not elaborate on any
benefits related to a reduced number of days of weekly school attendance
other than to state that the schedule would allow her to spend more time
with the children.

9
CL-2024-0897

The father also testified that the older son's "interventional

teacher," Marian Smalley, had been tutoring the children over the

summer at the father's request. During the trial, there was significant

confusion regarding Smalley's identity. Documentary evidence revealed

that the father had referred to Smalley as "Ms. Molly" in text

conversations with the mother. 8 The mother testified that she did not

know "Ms. Molly" and that the older son's school had reported that they

did not have an employee with the last name "Molly." The mother also

maintained that she had not known that the older son had an

interventional teacher; the father asserted that "Ms. Molly" had been the

child's interventional teacher for several years. The father refused to

provide Smalley's contact information to the mother because, he said,

Smalley had requested that he not provide the mother with that

information. 9 The father further testified that the mother had a

reputation at the children's schools for harassing the teachers and staff.

8We generally refer to Smalley by her actual name.
We use "Ms.
Molly" when appropriate based on the evidence or testimony of the
parties.

9The father testified that he communicated with Smalley through

Facebook Messenger, a text-message application, and that he had deleted
their messages "for room" on his telephone.
10
CL-2024-0897

The mother also testified that the children had demonstrated

behavioral issues after the father was awarded sole physical custody.

She indicated that the children had generally been disrespectful toward

her and at school; she asserted that they had imitated behavior that they

had learned from the father. The mother also stated that the older son

had displayed "a lot of hate" toward her after she had moved to Georgia.

The mother acknowledged that she had moved to Georgia in 2021 after

she had remarried and that she had left the children in Alabama with

the father at that time. She further admitted that the children's behavior

had worsened after she moved to Georgia and conceded that the

children's behavior toward her might have been influenced by that

decision.

The mother also testified that the children had been diagnosed with

attention-deficit/hyperactivity disorder ("ADHD"). She testified that she

believed that the father had delayed for several months his providing the

forms necessary to schedule the younger son's ADHD tests with the

doctor; the father asserted that the younger son's teacher had not

11
CL-2024-0897

returned a form in a timely manner.10 The mother testified that, based

on the children's diagnoses and behavioral issues, she and the father had

agreed in March 2024 to enroll the children in counseling with a

counselor located in Columbus, Georgia.11 The mother testified that the

children's behavior had improved after they began attending counseling

and also opined that their behavior had improved, in part, because they

had been spending more time with her in the summer. 12 She also

partially attributed the improvement in the children's grades to their

counseling sessions.

10Based on the record, it appears that the children's physician
required that the children's teachers and the parents complete specific
forms before testing the children for ADHD. One of the younger son's
teachers completed a form for the older son to be tested for ADHD in
November 2023. The father submitted the teacher-completed form and
parent form that he had completed for both children to the doctor in
February 2024. The mother testified that she had arrived at that same
doctor's office when the father was submitting the forms and that the
father had agreed to her request to jointly complete new parent-specific
forms at that time.

11The parents testified that they had jointly decided to utilize
counseling instead of medication for the children's ADHD due to the side
effects the medication could have on the children.

12The record indicates that the children had individual sessions
with the counselor and that the parents generally did not discuss the
counseling sessions with the children.
12
CL-2024-0897

The mother also testified that the paternal grandmother was the

primary caregiver for the children; the father asserted that the paternal

grandmother's primary child-rearing functions were taking the children

to and from school and caring for the children until the father returned

home from work. The trial court noted that "in previous hearings" it had

believed that the paternal grandmother was too involved in the children's

rearing. 13 The mother also testified that the paternal grandmother

generally refused to communicate with her. 14 The record indicates that

the lack of cooperation between the mother and the paternal

grandmother predated the entry of the trial court's May 2023 custody-

modification judgment. However, the mother also acknowledged that the

children frequently were permitted to telephone the mother when they

were in the paternal grandmother's care.

13The trial court also commented that it was not convinced that the

paternal grandmother's actions created a material change in
circumstances warranting a change in custody.

14Documentary evidence indicated that the father had asserted that

the paternal grandmother was not required to communicate with the
mother. The trial court noted that that was contrary to its oral
instructions in the previous hearings in the current action. The record
does not contain a written order relating to communication between the
mother and the paternal grandmother.
13
CL-2024-0897

The mother further testified that she believed that it was

inappropriate that the older son occasionally slept in the same bed as the

paternal grandmother and the paternal stepgrandfather and that she

had communicated her concern to the father. She testified that she did

not consider the children's sleeping with either parent to be

inappropriate. The father testified that, in response to the mother's

concerns, he had been working with the children on sleeping in their own

beds more consistently and that, as a result, the children generally slept

in their own beds.

The mother also expressed concern for the children's physical well

being while in the father's care. The mother testified that she frequently

had made the two-hour drive from her new residence in Cedartown,

Georgia, to Phenix City, Alabama, to transport the children to a medical

clinic because she believed that the father and the paternal grandmother

frequently had not taken the children to the doctor when she believed it

was necessary. The father testified that he believed that the mother

generally overexaggerated the children's medical issues. In support of

her opinion that the father did not adequately care for the children, the

mother recounted a February 2024 incident in which the older son was

14
CL-2024-0897

bitten by a spider while in the paternal grandmother's care. The mother

asserted that the father and the paternal grandmother would not take

the older son to the doctor despite the older son's leg being severely

swollen, and, she said, they had delayed informing the mother of the older

son's condition. The father presented evidence indicating that he had

informed the mother of the older son's condition once he became aware of

it, and the mother later clarified that the paternal grandmother had sent

her a picture of the older son's leg once the mother had requested it. The

mother also testified that she had directed the father to have the older

son call her "immediately" concerning his injury and that she had been

able to speak with the older son about the bite.

The mother also stated that the father had not initially taken the

younger son to the doctor regarding an ear infection that had caused the

younger son severe pain. 15 The father explained that there was no

indication that the younger son was in pain until he was on a telephone

call with the mother, and, he said, he had taken the younger son to the

doctor once the child began complaining. The younger son also suffered

15This incident occurred approximately two days before the
modification trial began on July 24, 2024.
15
CL-2024-0897

from fecal impaction, a form of severe constipation, in late 2023. The

mother asserted that the father had not adequately cared for the younger

son during that time; the father asserted that he had followed the

instructions provided by the mother and that he had communicated with

the mother regarding the younger son's condition.

At the conclusion of the trial, the trial court asked April Logan-

Russell, the children's guardian ad litem, to present a recommendation

to the court regarding the children's custody. Logan-Russell initially

stated that she did not have a recommendation but that she did have "a

whole list of things [that she would] like to talk about." She stated that

she believed that the father had intentionally kept the mother "out of the

loop" regarding the children and that that type of conduct had predated

the entry of the May 2023 custody-modification judgment. She also

stated that she believed that the children's behavior toward the mother

had improved after they spent more time with the mother; she conceded

that the children's separation from the mother was largely because the

mother had "left the kids with [the father]." She further noted that she

believed that the father and his family had spoken negatively about the

16
CL-2024-0897

mother in the presence of the children.16 After the trial court again

requested a recommendation, Logan-Russell stated the following:

"Well, here's why I think there could be a material
change. The only reason I think that is because [the father]
has been put on notice since the very beginning of this thing,
and he continues to do the same things that were happening.
That's my issue with it. To me, that could be a material
change, like why are you not fixing it. You've been told a
million times let's try to fix this, so that's my issue. That's
why I think there is a material change and that let's give [the
mother] a shot at it and see if she has them four days a week
and then lets [the father] have them the alternating time and
see if that fixes it because these kids are [emotionally]
suffering as it stands right now."

The trial court stated on the record that it was "not at all happy about

the way the [paternal] grandmother has acted nor am I happy about the

way [the father] has acted." The trial court also stated that if it did award

the mother custody, it would be because the father was at fault and that

if it did not award the mother custody and "[the case] comes back again,

[modification will occur] the next time and it's going to be [the father's]

fault." In addition, the trial court commented without elaboration that it

saw "some possible benefit in a change of custody with the schedule" but

stressed that it had not yet decided the issue of the children's custody.

16The father denied making such comments.

17
CL-2024-0897

On August 26, 2024, the trial court entered an "Amended

Modification Order" awarding the mother sole physical custody of the

children subject to specified visitation being awarded to the father. 17 In

reaching its decision, the trial court stated that

"[t]he Court is of the opinion that the [m]other has met the
burden of proof under McLendon, such that she should be
granted physical custody of the minor children over the
father. The Court specifically finds, among other things, that
based on the ore tenus testimony and evidence presented in
open court, the benefits of the change in custody would more
than offset the inherent disruptive effect of said change, to
wit: that the children, who are suffering with their educations
in school, would benefit from smaller classroom settings, a
truncated school schedule (Tuesday through Friday), more
structure with their [m]other as it appears the [f]ather works
long hours and that the children are mostly cared for by the
grandparents, and a family home where the children's needs
and interests can be the center of focus. Not only was this the
recommendation of [Logan-Russell], but the Court has serious
concerns about the [f]ather's involvement in the children's
rearing at this point.

"This reversal by the Court does not contradict the ...
initial concerns about the [m]other's move away to Georgia
when she left the children with the [f]ather but highlights the
fact that the [f]ather has not, in the Court's opinion, taken his
role as sole physical custodian of the minor children with the
gravity that such a responsibility deserves. Nor does it appear
that the [f]ather's willingness to co-parent is nothing more

17The "Amended Modification Order" amended a "Modification
Order" the trial court had entered 10 minutes before the amendment.
The differences between the two orders have no bearing on our recitation
of the facts or our analysis.
18
CL-2024-0897

than a formality, often times giving way to instances of
plausible deniability. Nor does it excuse the [m]other's
sometimes overbearing conduct during their interactions.
They both need to put the needs of the children first!"

The father filed a postjudgment motion asserting that the mother had

failed to meet the standard set forth in Ex parte McLendon. After a

hearing, the trial court denied the father's postjudgment motion.

On appeal, the father asserts that the evidence did not satisfy the

high standard required to modify the physical custody of the children set

forth in Ex parte McLendon.

" 'When this Court reviews a trial court's child-
custody determination that was based upon
evidence presented ore tenus, we presume the trial
court's decision is correct: " 'A custody
determination of the trial court entered upon oral
testimony is accorded a presumption of correctness
on appeal, and we will not reverse unless the
evidence so fails to support the determination that
it is plainly and palpably wrong....' " '

"Ex parte Fann, 810 So. 2d 631, 633 (Ala. 2001) (quoting Ex
parte Perkins, 646 So. 2d 46, 47 (Ala. 1994), quoting in turn
Phillips v. Phillips, 622 So. 2d 410, 412 (Ala. Civ. App. 1993)).
However, when the question presented on appeal is one of
law, the ore tenus rule has no application. Ex parte Perkins,
646 So. 2d at 47. Likewise, there is no presumption of
correctness regarding the trial court's application of the law
to the facts. Amie v. Conrey, 801 So. 2d 841, 846 (Ala. Civ.
App. 2001). This court reviews questions of law de novo.
Alabama State Bar v. Caffey, 938 So. 2d 942, 945 (Ala. 2006)."

19
CL-2024-0897

Brooks v. Brooks, 991 So. 2d 293, 300 (Ala. Civ. App. 2008).

Further,

"[t]he law is well settled that '[a] parent seeking to modify a
custody judgment awarding primary physical custody to the
other parent must meet the standard for modification of
custody set forth in Ex parte McLendon[, 455 So. 2d 863 (Ala.
1984) ].' Adams v. Adams, 21 So. 3d 1247, 1252 (Ala. Civ. App.
2009). The custody-modification standard set forth in Ex
parte McLendon, 455 So. 2d 863 (Ala. 1984), requires that

" 'the noncustodial parent seeking a change of
custody must demonstrate (1) "that he or she is a
fit custodian"; (2) "that material changes which
affect the child's welfare have occurred"; and (3)
"that the positive good brought about by the
change in custody will more than offset the
disruptive effect of uprooting the child." Kunkel v.
Kunkel, 547 So. 2d 555, 560 (Ala. Civ. App. 1989)
(citing, among other cases, Ex parte McLendon,
455 So. 2d 863, 865-66 (Ala. 1984) (setting forth
three factors a noncustodial parent must
demonstrate in order to modify custody)).'

"McCormick v. Ethridge, 15 So. 3d 524, 527 (Ala. Civ. App.
2008). It is not sufficient for a noncustodial parent seeking a
modification of custody to show that he or she is a fit
custodian. Id. The noncustodial parent must prove all three
McLendon factors in order to warrant a modification of
custody. Id."

Walker v. Lanier, 180 So. 3d 39, 42 (Ala. Civ. App. 2015). In addition,

"[t]he need for stability in a child's life necessitates the
requirement that the party seeking the modification prove to
the court's satisfaction that 'material changes affecting the
child's welfare since the most recent decree demonstrate that

20
CL-2024-0897

custody should be disturbed to promote the child's best
interests.' Wood v. Wood, 333 So. 2d 826, 828 (Ala. Civ. App.
1976). Consequently, frequent disruptions are condemned.
Wood."

Hermsmeier v. McCoy, 591 So. 2d 508, 509 (Ala. Civ. App. 1991).

The father asserts that the evidence did not support the presence

of a material change in circumstances and that there was no evidence

presented to suggest that the benefits of awarding the mother sole

physical custody of the children would outweigh the disruptive effect of

uprooting the children. We stated in Gallant v. Gallant, 184 So. 3d 387,

393 (Ala. Civ. App. 2014), that,

"[i]n keeping with the rationale behind the doctrine of res
judicata, the supreme court decided that, in order to prevent
'oft-repeated, harassing litigation over the custody of infants,'
a final child-custody determination, like any other judgment,
could not be reopened for reconsideration of the correctness of
the judgment. Sparkman v. Sparkman, 217 Ala. 41, 43, 114
So. 580, 581 (1927)."

However, "if a party could satisfactorily prove that circumstances had

changed in a significant way since the entry of the earlier judgment, the

doctrine of res judicata would not preclude a new determination of child

custody based on those changed circumstances." Gallant, 184 So. 3d at

393. Thus, we emphasize that Ex parte McLendon requires that, in order

to prevail on a custody-modification petition, a party seeking to modify a

21
CL-2024-0897

previous custody judgment must establish that a material change in

circumstances has occurred since the entry of the previous custody

judgment. See Brooks, 991 So. 2d at 301 (explaining that the parent

seeking a modification of custody is "required to show, among other

things, that material changes that affect the child's welfare [have]

occurred since the original award of custody"). "A material change of

circumstances occurs when important facts unknown at the time of the

initial custody judgment arise that impact the welfare of the child."

K.E.W. v. T.W.E., 990 So. 2d 375, 380 (Ala. Civ. App. 2007). Thus,

because it modified the children's custody, the trial court must have

found that a material change in circumstances had occurred since the

entry of the May 2023 custody-modification judgment. We conclude that

the record does not support such a finding.

The trial court relied on the father's work schedule, the paternal

grandmother's role as a caregiver for the children, and the children's

declining grades as bases for modifying the May 2023 custody-

modification judgment and awarding the mother sole physical custody of

the children. Our review of the record indicates that, at the time of the

2024 trial, the father maintained the same employment and schedule

22
CL-2024-0897

that he had before the entry of the May 2023 custody-modification

judgment and that his living situation had also not changed. The record

also indicates that the paternal grandmother was a caregiver for the

children before the entry of the May 2023 custody-modification judgment

and that the issues between her and the mother similarly predated the

entry of the May 2023 custody-modification judgment. See S.L.L. v. L.S.,

47 So. 3d 1271, 1279 (Ala. Civ. App. 2010) ("Because at the time the

juvenile court awarded custody of the child to the father the juvenile

court fully expected the father to require a significant amount of

assistance from the paternal grandmother, the evidence indicating that

the paternal grandmother, in fact, provided such assistance to the father

does not indicate a change in circumstances warranting a custody

modification."); Johnson v. Johnson, 262 So. 3d 1229 (Ala. Civ. App. 2018)

(providing that the father's use of a nanny, which predated the original

custody order, did not support a modification in custody). Similarly, as

Logan-Russell stated, the parents' issues with communication predated

the entry of the May 2023 custody-modification judgment. The record

establishes that each of those facts were known to the trial court at the

time it entered the May 2023 custody-modification judgment and were

23
CL-2024-0897

therefore not material changes in the circumstances of the children, and,

therefore, those facts could not provide a sufficient foundation to modify

the children's custody. See C.E. v. C.C.H., 963 So. 2d 131, 135 (Ala. Civ.

App. 2007) (reversing a custody-modification judgment, in part because

"[n]othing in the testimony at trial established a material change in

circumstances affecting the child's welfare such that custody should be

changed").

The only change in the children's circumstances since the entry of

the May 2023 custody-modification judgment was the children's declining

grades at their respective schools. The father relies on Jenkins v.

Jenkins, 541 So. 2d 19, 20 (Ala. Civ. App. 1989), for the proposition that

declining grades are not a material change in circumstances when the

parents have implemented a plan to correct the declining grades. We

note that our holding in Jenkins concerned whether the noncustodial

father had proven that a change in custody would materially promote the

welfare and best interest of the child, not whether there had been a

material change in circumstances. Nonetheless, we agree with the

father's assertion that the record in this case does not support a finding

that the children's declining grades, by themselves, are a material change

24
CL-2024-0897

in circumstances that affected the welfare of the children. Although both

parents testified that the children's grades had declined and that the

children were capable of better grades, the record is unclear how far the

children's final grades had actually fallen relative to the children's

normal grades or how the children's declining grades had affected their

welfare. We also note that the father testified that, after the children's

grades had fallen, he had increased the amount of time that he spent

with the children on their schoolwork, that their grades had improved,

and that the children had been promoted to their respective next grade

levels. We further note that the father testified that he had invited the

older son's interventional teacher to tutor the children during the

summer. See, e.g., Ladden v. Ladden, 49 So. 3d 702, 717 (Ala. Civ. App.

2010) (concluding that a child's declining grades were not a material

change in circumstances because the custodial mother had personally

taken steps to help the child after her grades had fallen and had secured

the services of a tutor for the child).

The mother also attempts to rely on Jenkins "as good precedent for

the [ore tenus] standard of review … and [as] an excellent example of an

25
CL-2024-0897

appellate court adhering to that standard."18 The mother's brief at 40.

Thus, the mother asserts that this court is effectively bound by the ore

tenus presumption of correctness afforded to the trial court and must

affirm its judgment. However, our supreme court has held:

" '[T]he ore tenus standard of review has no application to a
trial court's conclusions of law or its application of law to the
facts; a trial court's ruling on a question of law carries no
presumption of correctness on appeal.' Ex parte J.E., 1 So. 3d
[1002,] 1008 [(Ala. 2008)] (citing [Ex parte] Perkins, 646 So.
2d [46,] 47 [(Ala. 1994)], and Eubanks v. Hale, 752 So. 2d
1113, 1144-45 (Ala. 1999)). This Court ' "review[s] the trial
court's conclusions of law and its application of law to the facts
under the de novo standard of review." ' Id. (quoting
Washington v. State, 922 So. 2d 145, 158 (Ala. Crim. App.
2005))."

Espinoza v. Rudolph, 46 So. 3d 403, 412 (Ala. 2010) (emphasis added).

See also Brooks, 991 So. 2d at 302. As discussed above, the children's

declining grades did not constitute a material change in circumstances,

and the other facts considered by the trial court were ongoing issues that

predated the entry of the May 2023 custody-modification judgment.

18In his appellate brief, the father asks us to strike the mother's

brief on appeal for untimeliness. We therefore treat his brief as a motion
to strike the mother's brief. Over the father's objection, we granted the
mother's request for an enlargement of time for filing her brief on appeal;
her brief was due on May 29, 2025. The mother filed her brief on May
29, 2025, and, thus, it was timely filed. Therefore, we deny the father's
motion to strike.
26
CL-2024-0897

Thus, the mother failed to demonstrate that a material change in

circumstances had occurred since the entry of the May 2023 custody-

modification judgment that would warrant a modification of the

children's custody.

The mother attempts to find similarities between the present case

and our decisions in R.D.F. v. R.J.F., 271 So. 3d 831 (Ala. Civ. App. 2018),

and Goetsch v. Goetsch, 990 So. 2d 403 (Ala. Civ. App. 2008). However,

those cases are distinguishable from the present case. In R.D.F., the

record contained evidence indicating that the father's conduct had caused

emotional damage to the children in that case. Similarly, in Goetsch

there was evidence to indicate that the children in that case had been

subjected to emotional abuse in the custody of the custodial parent. In

contrast, the record in the present case contains no indication that the

children had been emotionally or physically harmed by the father's work

schedule, the paternal grandmother's care of the children during the

father's working hours, or the communication issues between the

parents.

The mother further asserts that the record presents an

"amalgamation" of issues that, when taken together, meet the Ex parte

27
CL-2024-0897

McLendon standard. We emphasize that the majority of the issues relied

on by the trial court in the August 2024 judgment concerned issues that

were presented in the April 2023 custody-modification trial and had

persisted since before the entry of the May 2023 custody-modification

judgment. The mother presented no evidence of any facts that were

unknown to the trial court before the 2024 modification trial that would

indicate that a material change of circumstances had occurred, see

K.E.W., 990 So. 2d at 380; instead, the record clearly discloses that the

mother relied on ongoing issues that the trial court was aware of during

the April 2023 custody-modification trial and that existed both before and

at the time of the entry of the May 2023 custody-modification judgment.

The children's declining grades, which had improved since the father had

made a dedicated effort to work with the children on their education, was

the only new or previously "unknown" fact presented at trial. Thus, the

record does not contain an "amalgamation" of issues sufficient to

establish a material change in circumstances.

"[W]e are compelled to reiterate that, in matters of child custody,

frequent disruptions are discouraged." Vick v. Vick, 688 So. 2d 852, 856

(Ala. Civ. App. 1997). The modification petition at issue in this case was

28
CL-2024-0897

filed approximately four months after the entry of the May 2023 custody-

modification judgment and nine days after the denial of the mother's

postjudgment motion directed to that judgment. The modification

petition was largely based on many of the issues presented in the April

2023 custody-modification trial and reiterated the grounds recited in the

mother's postjudgment motion. Because the bases of the mother's

custody-modification petition were largely repetitive of concerns raised

and litigated in the April 2023 custody-modification trial, indicating that

those concerns were ongoing issues between the parties and not new

changes in the circumstances that had materially affected the children,

those concerns could not serve as a basis for a modification of custody

under Ex parte McLendon. 19 The changes in the children's grades that

had occurred since the entry of the May 2023 custody-modification

19We note that the "recommendation" made by Logan-Russell
largely relied on what she asserted were the father's ongoing coparenting
issues and that her statement that the trial court should "give [the
mother] a shot" at having sole physical custody of the children "to see if
that fixes it" does not comport with the requirement in Ex parte
McLendon that a material change in circumstances be established before
a trial court may modify a previous custody judgment.

29
CL-2024-0897

judgment were similarly not material changes that would justify a

modification in the children's custody.

The record does not reflect that the mother established that a

material change in circumstances had occurred since the entry of the May

2023 custody-modification judgment. See Ex parte D.B., 255 So. 3d 755

(Ala. 2017). Because nearly all the facts presented to the trial court

predated the entry of the May 2023 custody-modification judgment, the

trial court improperly applied the law to the facts presented to it. See

Brooks, 991 So. 2d at 300. Accordingly, we reverse the trial court's

August 2024 judgment and remand the case for the entry of a judgment

denying the mother's custody-modification petition.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Moore, P.J., and Hanson, Fridy, and Bowden, JJ., concur.

30