Ex parte Monroe

• Decision Date: 08 January 1999
• Citation: 727 So.2d 104
• Parties: Ex parte Ted A. MONROE. (Re Judith Monroe Mayhew v. Ted A. Monroe).
• Court: Alabama Supreme Court

727 So.2d 104

Ex parte Ted A. MONROE.

(Re Judith Monroe Mayhew v. Ted A. Monroe).

1971344.

Supreme Court of Alabama.

January 8, 1999.

T.J. Carnes of Carnes & Carnes, P.C., Albertville, for petitioner.

William P. Burgess, Jr., Huntsville, for respondent.

HOOPER, Chief Justice.

Ted A. Monroe and his wife Judith were divorced by the Marshall Circuit Court. That court gave the wife custody of their minor son, based on an agreement of the husband and wife. The father later petitioned for a change of custody, on the basis that the wife was moving to Michigan. The trial court modified its custody award so as to place the child with the father if the mother moved to Michigan. The Court of Civil Appeals reversed that custody modification. Mayhew v. Monroe, 727 So.2d 101 (Ala.Civ.App.1998). We granted the father's petition for certiorari review. We reverse the judgment of the Court of the Civil Appeals and reinstate the custody-modification order of the circuit court.

Ted Monroe and Judith Monroe (now Judith Monroe Mayhew) were married in 1985. Their son was born in 1990. The father was allowed visitation at least 26% of the time. However, the record indicates that before the father petitioned for a change of custody, the child was spending at least half of his time with his father. The child has a very close relationship with the extended family of his mother and with that of his father as well, and all members of the child's extended families reside in the area of Marshall County, where the child has been reared.

The mother informed the father in October 1996 that she would be moving to Michigan in January 1997, taking a job there, and taking the child with her. On November 19, 1996, the father petitioned the Marshall Circuit Court for a change of custody. According to the mother's testimony at the hearing on the question of custody modification, she was at that time working as a Federal employee at Redstone Arsenal, a facility of the United States Army. She testified that she had been informed that her job at Redstone Arsenal was ending and that there were several locations where she could take another job similar to her current one—Huntsville, Alabama; Columbus, Ohio; Battle Creek, Michigan, and a location in Georgia. The mother testified that she had been told later that she was being reassigned to Battle Creek, Michigan. The record indicates that at that time the mother's boyfriend resided in Battle Creek, Michigan.

The father's modification petition asked that general custody be placed with him, given that the mother had indicated she would be moving to Battle Creek, Michigan, and taking the child with her. The court entered an order modifying the custody provision so that if the mother moved to Michigan as she had planned, custody would be moved to the father, subject to the mother's right to visitation.

The trial court reasoned that if the mother was allowed to take the child to Michigan, then it was quite conceivable that the child's father and the child's extended families would no longer be in close contact with him.

The child, according to the evidence presented, has an unusually close relationship with his father and with the child's extended families, and the evidence indicated that a sudden absence of contact with them could detrimentally affect him. The trial judge heard evidence indicating that if the child moved to Michigan with his mother he would become separated from everyone and everything in his life that he was familiar with, except his mother.

In the modification proceeding, the trial court applied the standard set out in Ex parte McLendon, 455 So.2d 863, 865-66 (Ala. 1984):

"The positive good brought about by the modification must more than offset the inherently disruptive effect caused by uprooting the child. The parent seeking the custody change must show not only that [he or] she is fit, but also that the change of custody `materially promotes' the child's best interest and welfare."

Judge Gullahorn granted the change of custody following an ore tenus proceeding. He stated that the mother and the father were both exemplary parents, and he based his order solely on the effects the mother's proposed move would have on the child. The mother stated that if she had to choose between losing custody and staying in Alabama, then she would stay in Alabama. The mother also testified that she could, but has not, sought other employment in the same area.

In his modification order, the trial judge stated:

"[I]t would be in the child's best interest to transfer custody to the [father] and ... the benefits of remaining in close contact with the [father] and in close contact with the members of [the extended families of the father and the mother] would, in fact, outweigh the negative effects that [the] change of custody would have."

"The judgment of a trial court based on ore tenus evidence is presumed correct, and its findings `will not be disturbed on appeal unless they are palpably wrong, manifestly unjust, or without supporting evidence.'" Anderson v. Lee, 621 So.2d 1305, 1307 (Ala. 1993), quoting McCoy v. McCoy, 549 So.2d 53, 57 (Ala.1989). In Raidt v. Crane, 342 So.2d 358, 360 (Ala.1977), this Court stated:

"It is axiomatic that where the evidence has been [presented] ore tenus, a presumption of correctness attends the trial court's conclusions on issues of fact, and this Court will not disturb the trial court's conclusion unless it is clearly erroneous and against the great weight of the evidence, but will affirm the judgment if, under any reasonable aspect, it is supported by credible evidence."

The record supports the trial court's determination that remaining in Alabama is in the best interest of the child. The testimony of Dr. Roger Rinn, a licensed psychologist in clinical practice in Huntsville, strongly supports the idea that it is important for this boy's father to maintain an important position in his life during his childhood. Dr. Rinn testified that fathers were "very important for sons in particular" and that by being with his father a boy "learns how to be a male, an adult male." Dr. Rinn also testified that boys who have close relationships with their fathers tend to have higher academic achievement, tend to be more empathetic as adults, and tend to be more compassionate toward others. Dr. Rinn concluded his testimony by stating that the more time a male child is able to spend with his father, the more well rounded and better adjusted that child would be. Thus, the trial court heard substantial evidence indicating that the child would benefit by growing up in an area close to where his father lives, so that the important relationship between father and son could be maintained.

The evidence indicated that after the parties were divorced, the mother married a second time, and that her second marriage had also ended in divorce. Testimony given by the father at the modification hearing indicated that the child had been confused during the period just before the mother's second marriage and after that marriage had ended. The father testified that before the mother's second marriage, the son had said to him, "Daddy, ah, I'm getting me a new daddy," and that after the mother's second marriage ended, the child told the father, "Daddy, Kevin [the second husband] has left." This communication highlights the importance of his relationship with his father, with whom he has a strong positive relationship. Dr. Rinn, the father's expert, offered strong testimony suggesting the importance of the child's relationship with his father.

Dr. David Wilson, also a licensed psychologist, testified for the mother. He had had two 40-minute sessions with the child, attempting to assess the child's psychological and emotional state before the date of the custody-modification hearing. He testified that both the mother and the child appeared to be psychologically stable. Dr. Wilson testified that he thought the child was enthusiastic about moving to Michigan, because the child had told him he was "excited about playing in the snow." Dr. Wilson also testified that the mother and the child had a very close relationship and that the child was emotionally dependent on his mother. Dr. Wilson offered no testimony concerning the long-term effects the child might experience by moving away from his father and extended families.

An appellate court may not substitute its judgement for that of the trial court. As the Court of Civil Appeals stated in Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ.App. 1993), "To substitute our judgment for that of the trial court would be to reweigh the evidence. This Alabama law does not allow."

"In domestic relations cases a minor child has an inalienable right to the maximum protection of the judiciary; all other rights are secondary." Ex parte D.W.W., 717 So.2d 793, 796 (Ala.1998). The trial court analyzed testimony given by various experts, counselors, and family members and from that testimony determined that it was in the best interest of the child to stay in Alabama close to his father and to the child's very supportive extended families. We cannot say the trial judge's determination was clearly erroneous or against the great weight of the evidence; its judgment was not plainly and palpably wrong.

The judgment of the Court of Civil Appeals is reversed and the order of the Circuit Court of Marshall County is reinstated.

JUDGMENT OF THE COURT OF CIVIL APPEALS REVERSED; ORDER OF THE CIRCUIT COURT OF MARSHALL COUNTY REINSTATED.

MADDOX, SHORES, HOUSTON, and SEE, JJ., concur.

COOK, J., concurs in result.

KENNEDY and LYONS, JJ., dissent.

LYONS, Justice (dissenting).

I respectfully dissent.

When a noncustodial parent seeks to modify an existing custody determination, that parent bears a heavy burden. He or she must prove that a material change in circumstances has occurred since the last custody order, that a change in custody will materially promote the...