Opinion
Civ. 7924.
February 27, 1991. Rehearing Denied April 5, 1991.
Appeal from the Circuit Court, Covington County, William H. Baldwin, J.
James W. Parkman III of Parkman Brantley, Dothan, for appellant.
Linda S. James of James James, Andalusia, for appellee.
The parties were divorced on July 31, 1989. Following the filing of a petition for modification for additional child support by the wife on February 6, 1990, the husband answered and cross petitioned for change of custody of the minor children. The trial court conducted an ore tenus proceeding, and on July 3, 1990, entered an order denying the wife's petition and granting a change in custody of the minor children to the husband during the school year and to the wife during the summer months. The trial court subsequently held a hearing on a motion for rehearing, which motion was denied. The wife appeals. We affirm.
The single issue raised on appeal is whether the trial court erred in changing the custody of the minor children.
At the outset we note that our standard of review is very limited in cases where the evidence is put before the court ore tenus. A judgment of the trial court entered upon oral testimony, involving custody of a child, is accorded a presumption of correctness on appeal, Payne v. Payne, 550 So.2d 440 (Ala.Civ.App. 1989); 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).
This court pretermits as unnecessary a detailed summary of the evidence. The trial court heard several witnesses for both parties, observed the demeanor of the parties and the witnesses, and ordered a change in custody to the husband. We believe that, in considering the testimony, the trial court applied the criteria for change in custody established in Ex parte McLendon, 455 So.2d 863 (Ala. 1984) — that such a change must promote the welfare and best interests of the children and that the benefits of change ordered must outweigh any disruptive effect of such a change. Accordingly, after carefully reviewing the record with the attendant presumptions, we cannot say that the determination of the trial court to transfer custody to the husband was either an abuse of discretion or was so unsupported by the evidence as to be plainly and palpably wrong.
This case is due to be affirmed.
AFFIRMED.
THIGPEN, J., concurs.
ROBERTSON, P.J., dissents.
It is a stringent standard which must be met in any child custody modification case. The parent seeking a change of custody has a heavy burden and must show that the change of custody would "materially promote" the child's best interests and welfare. Ex parte McLendon, 455 So.2d 863 (Ala. 1984). The positive good brought about by the modification must more than offset the inherently disruptive effect caused by uprooting the child. McLendon.
After a review of the record, I cannot agree with the majority that the father has met his burden of proof. In my opinion, the record simply does not show that a change of custody is warranted. The record only shows that the mother has moved from Andalusia to Dothan and is presently living in a three-bedroom apartment. The mother testified that she made the move in an effort to further her education.
As concerns the allegations by the father, that the mother was living with another man, I point out that, although our courts have long held that evidence of "indiscreet" conduct may be considered as a factor in custody modification actions, custody will not be modified where the party seeking the change (here the father) fails to establish a substantial detrimental effect on the welfare of the child as a result of the "indiscreet" conduct. Benton v. Benton, 520 So.2d 534 (Ala.Civ.App. 1988). Here, the record reveals that the mother did have a male friend living with her for a brief time. However, the record is devoid of any evidence of any substantial detrimental effect this may have had on the children.
I also note that the father contends that the children were not doing well in school. Again, however, the record does not support this allegation. In fact, the mother testified that the children are doing well in their present schools and submitted evidence in support of this.
In view of the very stringent standard set out in McLendon, it is my opinion that the trial court erred in modifying custody. Therefore, I must respectfully dissent.