Butts v. Startley
| Decision Date | 22 May 1992 |
| Court | Alabama Court of Civil Appeals |
| Parties | Dawna Startley BUTTS v. Gene STARTLEY. 2910090. |
Garrick L. Stotser, Birmingham, for appellant.
Jeffrey W. Bennitt of Kizer & Bennitt, Birmingham, for appellee.
L. CHARLES WRIGHT, Retired Appellate Judge.
The parties were divorced by decree of the Circuit Court of Jefferson County in March 1989. The father was given custody of the parties' two minor daughters. In May 1990 the mother filed a petition for rule nisi alleging that the father was not in compliance with the visitation provisions of the final decree. In August 1990 the father counterpetitioned seeking child support from the mother. In September 1990 the mother filed a petition for modification of child custody.
A hearing was held on all motions in September 1991. The court denied the mother's petition for custody and the father's counterpetition for child support. The court found the father to be in contempt for failure to abide by the visitation provision of the final decree. Each party was ordered to pay his or her own attorney fees. The mother appeals.
Initially, the mother asserts that the trial court erred in denying her petition for modification of child custody.
In child custody modification cases, the noncustodial parent has the burden of showing that a change in custody will materially promote the child's best interests and welfare. Ex parte McLendon, 455 So.2d 863 (Ala.1984). The petitioning parent must also show that the positive good brought about by the change in custody would more than offset the inherently disruptive effect caused by uprooting the child. Foster v. Carden, 515 So.2d 1258 (Ala.Civ.App.1987).
When the trial court is presented evidence ore tenus, its determination is presumed correct and will not be disturbed on appeal unless it is so unsupported by the evidence as to be plainly and palpably wrong or unless an abuse of the trial court's discretion is shown. Nicholas v. Nicholas, 464 So.2d 527 (Ala. Civ.App.1985).
The mother contends the evidence was sufficient to meet the McLendon burden. She insists that the father's deteriorating financial condition, his frequent change of residencies, his interference with visitation, and his violent and erratic temper are factors which demonstrate that a material change in circumstances has occurred since the final decree. She suggests that her lifestyle and financial position would be more conducive to establishing a fit and proper environment for the children.
Our careful review of the voluminous record does not support the mother's contentions on appeal. She had the burden of showing that the father's living arrangements had a detrimental effect on the children and that transferring custody to her would materially promote the best interests of the children. Ex parte McLendon. She failed to carry that burden.
The record is devoid of any evidence that tends to show that the father's alleged activities were detrimental to the children. The children's teachers testified that they were happy children, that they did extremely well in school, and that the father and step-mother were very involved in school activities. The children testified and each stated that she wished to live with their father.
We find that the evidence supports the court's refusal to modify custody.
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