Durham v. Durham
| Decision Date | 08 November 1989 |
| Citation | 555 So.2d 1093 |
| Parties | David I. DURHAM III v. Elizabeth L. DURHAM. Civ. 7080. |
| Court | Alabama Court of Civil Appeals |
Stephen R. Arnold of Durward & Arnold, Birmingham, for appellant.
J. Gary Pate of Boyd, Pate & Fernambucq, Birmingham, for appellee.
The parties were divorced in 1984, and custody of the minor child was awarded to the mother. In November 1988, the father petitioned the trial court for a change of custody. He also filed a "petition for ascertainment," contending that he was entitled to a reimbursement of certain monies he erroneously paid to the mother. After an ore tenus proceeding, the trial court denied both the father's "petition for ascertainment" and the petition to modify.
On appeal, the father contends that the trial court erred in not awarding him custody of the child.
At the outset, we would note that it is a stringent standard which must be met in any child custody modification case. Benton v. Benton, 520 So.2d 534 (Ala.Civ.App.1988). The parent seeking a change 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). Furthermore, the law is clear that, where a trial court hears the testimony in a child custody modification case, as it did here, we presume that the trial court is correct. Batton v. Batton, 496 So.2d 68 (Ala.Civ.App.1986). We will reverse only for either an abuse of discretion or where the judgment is unsupported by the evidence so as to be plainly and palpably wrong. Batton, supra.
Reviewing the record with the attendant presumption, we find no such abuse of discretion. The record reveals, in pertinent part, that the mother is presently married and provides a nice home for the child. The child has his own bedroom and bath and lives only a short distance from the private school which he attends. The record also reveals that the mother, stepfather, and child routinely attend church and have numerous other shared activities. The child's school performance has improved, and he is in excellent health.
We do note that there is some evidence of the mother's "indiscreet" behavior in the past. However, our courts have long held that evidence of "indiscreet" conduct is only a factor to be considered in child custody cases. Benton, supra. Custody will not be modified, based on the "indiscreet" conduct, where the party fails to establish a substantial detrimental effect on the welfare of the child as the result of such conduct. Benton, supra.
In view of the above, we cannot say that the trial court erred in denying the father's request for custody. The father had a heavy burden to prove in order to change custody of his...
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...is so unsupported by the evidence as to be plainly and palpably wrong. Ex parte Jones, 620 So.2d 4 (Ala.1992); Durham v. Durham, 555 So.2d 1093 (Ala.Civ.App. 1989). The noncustodial parent must show that since the most recent custody order there has been such a material change in circumstan......
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