Timothy Michalak v. Jessica Peterson

REL: March 3, 2023

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
OCTOBER TERM, 2022-2023
_________________________

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_________________________

Timothy Michalak

v.

Jessica Peterson

Appeal from Calhoun Circuit Court
(DR-19-4.01)

PER CURIAM.

Timothy Michalak ("the father") appeals from a judgment entered

by the Calhoun Circuit Court ("the trial court") in favor of Jessica

Peterson ("the mother"), denying his petition for a modification of custody

and modifying his visitation schedule. We affirm the judgment.

The parties' child was born in June 2016, apparently when the

father resided in the State of Washington and the mother resided in
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California. Eventually, the mother and the child moved to Oxford,

Alabama; the father remained in Washington. At some point, a child-

support order was entered in a Washington jurisdiction, presumably by

a Washington court, based on a petition filed by the Washington

Department of Social and Health Services. The Washington child-

support order required the father to pay $817 per month to the mother

as child support. Also, at some point, the mother commenced a custody

proceeding in the trial court. Pursuant to a judgment entered by the trial

court in February 2019 ("the February 2019 judgment") the parties were

awarded joint legal custody of the child, and the wife was given primary

decision-making authority. The February 2019 judgment also awarded

the mother "sole physical custody" of the child and awarded the father

visitation (referred to in the judgment as "secondary placement

privileges") "at all reasonable times and under reasonable circumstances

agreed to in advance" by the parties, provided, however, that the father

was to have minimum visitation of an identified weekend or extended

weekend in most months; approximately nine days for each spring and

fall break of the child's school (subject to some adjustment to

accommodate the mother's custody during Thanksgiving of even-

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numbered years); for four days for Thanksgiving in odd-numbered years;

for all but three weeks of the summer break of the child's school; and from

December 26th each year until the resumption of the child's school. The

father also had a right to visit with the child any weekend that the father

was in Alabama, provided that he gave the mother 10 days' advance

notice of his intent to exercise that right. The February 2019 judgment

also stated that the provisions of the Washington child-support order

"remain[ed] in full force and effect."1

In March 2021, the father filed in the trial court a petition for a

modification of physical custody as to the parties' child. The father

alleged that he recently had purchased a home in Oxford and was

relocating there. He requested that physical custody be changed to joint

physical custody and that the child be in his care at least half of the time.

The father also requested a reduction of his child-support obligation. The

mother filed an answer denying the allegations in the father's

1The record on appeal contains no information that might cause this
court to question whether jurisdiction was improper in either the
Washington child-support proceeding or the initial custody proceeding in
the trial court. Accordingly, we must assume that no jurisdictional
problems exist that might affect the Washington child-support order or
the February 2019 judgment. See Hummer v. Loftis, 276 So. 3d 215, 221
(Ala. Civ. App. 2018).
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modification petition. The mother also filed a counterclaim requesting

that the trial court hold the father in contempt because, according to her,

he had failed to pay child support as required by the Washington child-

support order.

After ore tenus proceedings, the trial court entered a judgment on

February 18, 2022 ("the February 2022 judgment"), denying the father's

modification petition as to custody on the ground that he had failed to

meet his burden under Ex parte McLendon, 455 So. 3d 863 (Ala. 1984).

The February 2022 judgment also modified the father's visitation, an

issue that had been tried by implied consent, see discussion, infra, and

denied his request for a modification of his child-support obligation based

on the trial court's determination that it lacked jurisdiction to modify the

Washington child-support order, see Ala. Code 1975, § 30-3D-609 et seq.

Similarly, the February 2022 judgment denied the mother's counterclaim

for contempt for nonpayment of child support on the ground that the trial

court lacked jurisdiction to enforce the Washington child-support order.

See Ala. Code 1975, § 30-3D-601 et seq.2

2It does not appear that either party registered the Washington
child-support order in Alabama. The mother has not appealed, and the
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Regarding the father's visitation, the February 2022 judgment

stated that the father was to have visitation with the child as the parties

could agree but that, at a minimum, he was to have visitation every other

weekend from the end of the school day on Friday until the start of the

school day on Monday; every other Wednesday night from the end of the

school day until the start of school on Thursday; on specified holidays, as

well as the spring and fall break of the child's school, with times

alternating between the parties; and on alternating weeks during the

recess of the child's school in the summer. The February 2022 judgment

also mistakenly awarded the father visitation on Mother's Day and the

mother visitation on Father's Day each year.

The father timely filed a postjudgment motion. On April 26, 2022,

the trial court entered an order denying the father's postjudgment motion

but amending the February 2022 judgment to correct the mistake as to

which party would have custody on Mother's Day and Father's Day

father makes no argument that the trial court erred by failing to modify
his child-support obligation.
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(based on the mother's oral motion at the postjudgment-motion hearing).3

The father timely filed a notice of appeal to this court.

" 'On appeal, this court presumes the correctness of a
judgment based upon evidence presented ore tenus. Ex parte
Bryowsky, 676 So. 2d 1322, 1324 (Ala. 1996).

' " '[W]e will not reverse [the judgment] 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.' "

" 'Ex parte Perkins, 646 So. 2d 46, 47 (Ala. 1994) (quoting
Phillips v. Phillips, 622 So. 2d 410, 412 (Ala. Civ. App. 1993)).
However, this court reviews the interpretation and
application of the [standard described in Ex parte McLendon,
455 So. 2d 863 (Ala. 1984)], which involve pure questions of
law, de novo. Gallant v. Gallant, 184 So. 3d 387, 401 (Ala.
Civ. App. 2014).' "

Weaver v. Jefferson, 242 So. 3d 1014, 1016-17 (Ala. Civ. App. 2017)

(quoting K.U. v. J.C., 196 So. 3d 265, 268-69 (Ala. Civ. App. 2015)).

The father argues that the trial court erred by requiring him to

satisfy the standard set forth in Ex parte McLendon, which requires a

3The father also filed a motion to consolidate the present case and
a pending protection-from-abuse case that the mother had filed. The trial
court denied that motion, which was apparently based on an alleged
incident between the father and the mother that had occurred after the
entry of the February 2022 judgment.
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noncustodial parent seeking to modify a previous custody award of sole

physical custody to demonstrate that a material change in circumstances

has occurred such that a change of custody would materially promote the

child's best interests and that the benefits of the change would offset the

disruptive effect of the change in custody. Id. at 866. According to the

father, the trial court should have applied the standard discussed in Ex

parte Couch, 521 So. 2d 987 (Ala. 1988) (discussing the best-interest-of-

the-child standard), because, he says, the parties "enjoyed equal or nearly

equal parenting time" under the February 2019 judgment.

In Ex parte Couch, the supreme court concluded that the trial court

in that case had erred by applying the standard described in Ex parte

McLendon when the original custody judgment had awarded the parties

"joint legal and shared physical custody" and the children were going to

be "moved and affected" regardless of who was awarded custody because

Carol Couch, who had been the children's primary custodian based on the

parties' agreement after the entry of the custody judgment, was moving

from Alabama to New York. The father attempts to analogize this case

to Ex parte Couch, contending that the "parenting schedule" in the

February 2019 judgment granted him nearly equal parenting time with

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the mother and that, after the entry of the February 2019 judgment, he

"ha[d] exercised his parenting time under [that judgment] to the fullest

extent possible which resulted in him having the child in his care 181

days of the prior calendar year," including every other weekend during

that calendar year, in addition to his other periods of extended visitation

described in the February 2019 judgment. It does not appear that the

father had exercised such extensive visitation before he moved to

Alabama.

The facts of the present case are not substantially analogous to the

facts in Ex parte Couch, and the father's argument that the trial court

erred by applying the standard described in Ex parte McLendon is

without merit. The February 2019 judgment unequivocally awarded the

mother sole physical custody of the child; the father pleaded as much in

his petition for modification and repeatedly testified at trial as to the

"visitation award" to him in the February 2019 judgment; he likewise

admitted at trial that the February 2019 judgment had awarded the

mother sole physical custody of the child; and the father's parenting time

under the February 2019 judgment was not "nearly equal" to that of the

mother until after he moved to Alabama and was able to exercise his right

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to visitation on additional weekends, a circumstance that the trial court

noted had not been anticipated when the February 2019 judgment was

entered.

The father cites several cases in addition to Ex parte Couch in an

attempt to buttress his argument. However, like Ex parte Couch, those

cases are distinguishable from the present case and we find no reason to

further discuss this issue. See Williams v. Williams, 243 So. 3d 826, 828

(Ala. Civ. App. 2017) (holding that the best-interest-of-the-child standard

applied when, under previous custody judgment, the parties "were

awarded joint legal and physical custody of the parties' children" and

were to exercise their respective physical-custody rights on alternating

weeks); E.F.B. v. L.S.T., 157 So. 3d 917, 923 (Ala. Civ. App. 2014) (holding

that the best-interest-of-the-child standard applied when, under previous

custody judgment, the parties had been awarded "joint physical custody"

and had exercised custody over the children for an approximately equal

amount of time); New v. McCullar, 955 So. 2d 431, 435-436 (Ala. Civ. App.

2006) (holding that the best-interest-of-the-child standard applied when

previous custody judgment had awarded the parties joint physical

custody in accord with Ala. Code 1975, § 30-3-151(3), but then included

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some provisions that were inconsistent with such an award, which would

not be construed against the joint-physical-custody award under the facts

presented); Rehfeld v. Roth, 885 So. 2d 791, 795 (Ala. Civ. App. 2004)

(holding that the best-interest-of-the-child standard applied when

previous custody judgment did not "expressly 'prefer' either parent by

providing that one parent will be the primary physical custodian or the

primary residential parent, or will otherwise have custodial priority" and

"incorporated the parties' agreement that the mother and the father will

share 'joint custody and control of the parties' minor children' "); Reuter

v. Neese, 586 So. 2d 232, 233 (Ala. Civ. App. 1991) (noting that the best-

interest-of-the-child standard applied when the parties' custody

agreement, which had been incorporated into the divorce judgment,

provided that, as to the child at issue, the parties would have "shared

joint custody," although the child "was to reside with the mother during

the school year and with the father during the summer months").4 Based

4In regard to his argument as to Ex parte Couch, the father also
argues that the standard described in Ex parte McLendon is a rule of
repose and should not have been applied because doing so "will cause a
significant disruption to the child." However, the father discusses no
factual basis to support that argument, and we will not consider it. Rule
28(a)(10), Ala. R. App. P.; see also Littlepage v. Littlepage, 217 So. 3d
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on the foregoing, we conclude that the trial court did not err by applying

the standard described in Ex parte McLendon.

The father next argues that the trial court erred by modifying his

visitation, or, as he contends, awarding the mother additional parenting

time with the child. According to the father, the trial court erred because

the mother had not filed a petition requesting such relief. The father

cites M.A.J. v. S.B., 73 So. 3d 1287 (Ala. Civ. App. 2011), in support of his

argument. However, in M.A.J., "[t]he evidence adduced at trial was not

such that it would have clearly alerted the father that the maternal

grandmother was seeking a termination of the joint-custody

arrangement and requesting sole custody of the child." M.A.J. v. S.B., 73

So. 3d 1287, 1289 (Ala. Civ. App. 2011). By contrast, in the present case,

928, 934 (Ala. Civ. App. 2016) (explaining that arguments on appeal that
do not include the required factual and legal discussions are waived).

We note that, based on the father's citations and parentheticals, he
appears to be implying that the mother was moving to a different state.
In his petition for a modification of custody, he had objected to the
mother's purported intention to move to Colorado. However, in her
answer, the mother denied that she had any intent of relocating to
Colorado; she alleged that she had merely been scheduled to work out of
town for a few weeks. The mother testified to the same effect at trial,
and the father admitted at trial that he knew the mother was not
intending to permanently relocate to Colorado when he had referenced
her relocation in his modification petition.
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the father testified at trial that he wanted to be awarded equal time with

the child and that he did not want the trial court to reduce his time with

the child, which itself belies any contention that he was unaware that a

reduction in time was a possible outcome of the proceeding. Also, the

mother testified that, based on the father's relocation and her concerns

for stability for the child, she wanted the court to award the father

visitation every other weekend and for half of the summer rather than to

maintain the visitation schedule from the February 2019 judgment. The

father did not object to her testimony or object that she had not filed a

petition requesting a modification of his visitation. In fact, the father's

counsel cross-examined the mother as to why she wanted to "cut [his

visitation] way back by this standard visitation schedule you're asking

the Court to enter" from the visitation they had agreed to while the

custody-modification proceeding was pending. The mother stated that

the child needed to have consistency during the school year and to be

"stationary in one home." She also stated that she wanted a more

standard visitation schedule because the father "will manipulate it the

way he has always through this whole process. If you go through and

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read text message upon text message, it's him harassing me. It's him

manipulating the paperwork. And it's him causing me complete anxiety."

According to the mother, the issue whether to alter the father's

visitation was tried by implied consent. See Rule 15(b), Ala. R. Civ. P.

("When issues not raised by the pleadings are tried by express or implied

consent of the parties, they shall be treated in all respects as if they had

been raised in the pleadings."). The mother's argument is correct. As

this court stated in Cantrell v. Cantrell, [Ms. 2200590, May 6, 2022] ___

So. 3d ___, ___ (Ala. Civ. App. 2022):

"[W]e observe that the mother's failure to file a counterclaim
asking the trial court to terminate the father's visitation is not
determinative of this issue. The father's counsel elicited
testimony from the mother indicating that she believed that
it was in the best interests of the child to terminate the
father's visitation. Similar testimony was elicited from [the
mother's husband] and [the mother's brother-in-law]. The
father did not object to the foregoing testimony.

" '[W]here an issue not pleaded by a party is tried
before the trial court without an objection by
another party, that issue is deemed to have been
tried by the implied consent of the parties. Rule
15(b), Ala. R. Civ. P.; Hosea O. Weaver & Sons, Inc.
v. Towner, 663 So. 2d 892 (Ala. 1995).'

"A.L. v. S.J., 827 So. 2d 828, 833 (Ala. Civ. App. 2002)(holding
that a claim for custody was tried by the implied consent of
the parties when the testimony demonstrated that an
intervening party wanted custody); C.B. v. J.W., 325 So. 3d

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829 (Ala. Civ. App. 2020)(holding that whether a child should
be forced to resume visitation with the father was tried by
implied consent of the parties due to elicited testimony at
trial). Because testimony was presented regarding whether
the father's visitation with the child should be terminated,
this issue was tried by implied consent."

See also Nelson v. Maddox, 270 So. 3d 1178, 1182 (Ala. Civ. App. 2018).

The father also makes a truncated argument that the purported

lack of notice that his visitation time might be reduced violated his right

to due process. However, he made no such objection at trial and, as noted

above, the issue was tried by implied consent. Thus, that argument is

without merit.

Further, the father argues that the trial court lacked jurisdiction to

consider modifying his visitation because, according to him, the mother

did not pay a filing fee in conjunction with her counterclaim as to that

issue. First, the mother's counterclaim was regarding the issue of

contempt, not a modification of visitation. Further, even if the mother

had filed such a counterclaim and failed to pay a filing fee, the failure to

pay filing fees associated with a counterclaim is not a jurisdictional

defect. See, e.g., Wood v. Gibson, [Ms. 2210060, Apr. 8, 2022] ___ So. 3d

___ (Ala. Civ. App. 2022). Based on the foregoing, we reject the father's

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arguments that the trial court erred by considering the mother's request

that his visitation be modified.

The father next argues that the application of the child-custody-

modification standard under Ex parte McLendon violated his rights to

due process and equal protection under the 14th Amendment to the

United States Constitution and/or that "the failure to award shared

custody to fit parents" violated such rights. This court first rejected these

arguments, made by the father's attorney on behalf of other clients, in

Gallant v. Gallant, 184 So. 3d 387 (Ala. Civ. App. 2014), and then in

Gordon v. Gordon, 231 So. 3d 347 (Ala. Civ. App. 2017), and most recently

in Shackelford v. Shackelford, [Ms. 2210201, Aug. 5, 2022] ___ So. 3d ___

(Ala. Civ. App. 2022), none of which the father's attorney references in

the father's initial appellate brief. 5 The mother notes those cases in her

initial appellate brief, but the father's attorney again makes no reference

to those cases in his reply brief. We see no need to revisit that issue; the

5The father's counsel should have been aware of this court's
previous rejection of these same constitutional arguments in Shackelford,
Gordon, and Gallant. When challenging -- either implicitly or explicitly
-- previous rulings by this court, counsel should address the merits of
those rulings and discuss why this court should not follow the doctrine of
stare decisis. The father's counsel did neither.
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father's constitutional arguments as to Ex parte McLendon are without

merit.

The father argues that "[t]he parenting schedule set forth in the

Court's order," by which we presume he means the February 2022

judgment, as amended, violates public policy as stated in Ala. Code 1975,

§ 30-3-150. Section 30-3-150 states:

"It is the policy of this state to assure that minor children have
frequent and continuing contact with parents who have
shown the ability to act in the best interest of their children
and to encourage parents to share in the rights and
responsibilities of rearing their children after the parents
have separated or dissolved their marriage. Joint custody
does not necessarily mean equal physical custody."

The February 2022 order awards the father ample visitation and assures

that he has frequent and continuing contact with the child. The father's

argument that the visitation award violates public policy is without

merit.

Finally, the father argues that "[t]he parenting time award is not

consistent with scientific research regarding the best interests of

children." He cites certain secondary authorities in support of that

argument. However, our custody standards are well settled and are the

subject of supreme court precedent that this court must follow. Ala. Code

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1975, § 12-3-16. Further, as the mother notes, the father did not make

this argument before or during trial but, instead, raised it for the first

time in his postjudgment motion, and there is no indication that the trial

court considered the merits of this argument when it denied the father's

postjudgment motion. Accordingly, we will not consider this argument.

See Espinoza v. Rudolph, 46 So. 3d 403, 416 (Ala. 2010) (noting that a

trial court is not required to consider a new legal argument in a

postjudgment motion when that argument could have been made at trial

and that this court will not presume that a trial court exercised its

discretion to consider such an argument where there is no indication in

the record that the trial court did so).

Based on the foregoing, the February 2022 judgment is affirmed.

The mother's request on appeal for an award of attorney's fees is granted

in the amount of $3,500.

AFFIRMED.

All the judges concur.

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