Davis v. Davis

Mark W. Davis, the father of two minor children, petitioned the trial court for a modification of the original child-custody arrangement set out in the judgment divorcing him and Robin O. Davis, the children's mother. That judgment awarded the mother and father joint legal and physical custody of their two children; in his petition the father sought sole custody of both children. After a hearing, the trial court denied the father's petition, finding that the father had failed to prove a material change in the parties' circumstances so as to merit a change of custody. The father appealed. However, while that appeal was pending, this court gave the father leave to file a petition for Rule 60(b), Ala. R. Civ. P., relief from the judgment denying his request for a change of custody. The father then moved for Rule 60(b) relief and petitioned for temporary custody of the children. Although in his brief to this court the father attached a copy of the trial court's protective-custody order, which awarded him custody of the children, that order does not appear in the record on appeal. It is axiomatic that this court cannot consider anything that is not contained in the record. Royal v. Safety Coatings, Inc., 655 So. 2d 927 (Ala. 1994). Furthermore, in entering the protective order, the trial court was silent on the issue whether the father's request for relief from the judgment was granted.