Ezell v. Hammond
| Decision Date | 01 February 1984 |
| Parties | Elizabeth Elaine (Hammond) EZELL v. George Clay HAMMOND. Civ. 3984. |
| Court | Alabama Court of Civil Appeals |
George Beck of Baxley, Beck, Dillard & Dauphin, Montgomery, for appellant.
Randy D. Whitten of Higginbotham & Whitten, Florence, for appellee.
This is a child custody case.
The trial court, after an ore tenus hearing, transferred custody of the couple's two minor sons to the father. The mother, through able counsel, appeals and we affirm.
The couple was divorced in April 1978. By agreement custody of the couple's sons, Matt, now aged fourteen, and Jamie, eight, was awarded the wife. The father was required to pay $400 a month child support. Eighteen months later the wife remarried. By later agreement the husband's child support obligation was reduced to $200 a month.
In August of 1982, the husband filed a petition to modify custody, seeking a joint custody arrangement whereby he would have primary custody of the children during the school year and his wife would have primary custody during the summer months. As a ground for that change, the husband attempted to prove that the relationship between the eldest son, Matt, and his mother had deteriorated.
After an ore tenus hearing, the court denied the change of custody in a February 1983 order, stating that with three and one-half months remaining in the school term it would not be in the best interests of the children to change custody at that time. The court specifically reserved jurisdiction over the custody matter to make such further orders as became necessary.
In June of 1983, the husband filed a second petition to modify, again seeking the joint custody arrangement on the basis of the deteriorating relationship between Matt and his mother. The court held a second ore tenus hearing, and with the consent of both parties, the judge examined the two minor sons in camera. Neither party requested that a court reporter attend the in camera examination in order to produce a transcript. By order dated August 4, 1983, the court modified the previous custody arrangement, vesting custody jointly in the parents, with the father to have primary care of the children during the school months and the mother to have primary custody during the summer months. The court also terminated all the father's child support obligations, ordering both parties to provide reasonable support for maintenance of the children while the children were in their respective care.
On appeal the wife contends that the trial court erred in three respects: in changing custody because there was no evidence of any material change of circumstances, in failing to provide child support to the mother during the summer months, and in failing to award the mother reasonable attorney fees, costs, and expenses. We will examine each ground separately.
The determination of child custody issues is committed to the sound discretion of the trial judge. The exercise of such discretion will not be reversed on appeal absent a plain and palpable abuse of such discretion. Johnson v. Johnson, 395 So.2d 1043 (Ala.Civ.App.1981). When a modification of a custody arrangement is involved, the applicable standard is materially changed circumstances. Anonymous v. Anonymous, 277 Ala. 634, 173 So.2d 797 (1965).
As stated above, the changed circumstance relied upon to justify the custody change in the instant case is the deteriorating relationship between the eldest son, Matt, and the mother. There is evidence that since the divorce Matt has, with an increasing frequency, expressed a desire to live with his father. After periods of visitation with his father, Matt often becomes unruly, begging his mother to allow him to visit longer with his father, at times throwing temper tantrums, and on one occasion, even cursing his mother. The father remarried in November of 1982, and there was evidence that Matt and Jamie got along well with their new stepmother's son, and that the father and new stepmother were concerned that a stable family environment be provided during periods of visitation. Prior to the hearing on the husband's first modification petition, the mother took the sons to a counselor, and one of the topics discussed was Matt's feelings toward his father. There was no evidence in the record that the younger son, Jamie, also behaved in this manner.
Matt was not called to the stand to testify as to his custody preference; however, as stated above, with the consent of the parties both children were examined in camera by the trial judge. As neither party requested that a transcript be made of the examination, we have no indication of what transpired within the judge's chambers.
Of course the paramount consideration in a custody matter is the best interests of the child, and the fact that an older child of sufficient judgment may prefer to live with a certain parent may be weighed by the court, even though the child's wishes are not controlling. McGregor v. McGregor, ...
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Morgan v. Morgan
...court's opinion) must be conclusively presumed to support the trial court's judgment as to visitation issues. See Ezell v. Hammond, 447 So.2d 766, 768–69 (Ala.Civ.App.1984).1 We note that another copy of that order contained later in the record on appeal indicates that the trial court denie......
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Morgan v. Morgan, 2120101
...this court's opinion) must be conclusively presumed to support the trial court's judgment as to visitation issues. See Ezell v. Hammond, 447 So. 2d 766, 768-69 (Ala. Civ. App. 1984).--------Footnotes: 1. We note that another copy of that order contained later in the record on appeal indicat......
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Morgan v. Morgan
...court's opinion) must be conclusively presumed to support the trial court's judgment as to visitation issues. See Ezell v. Hammond, 447 So. 2d 766, 768-69 (Ala. Civ. App. 1984). 1. The parties' daughter was a minor at the time the divorce action was filed, but she had reached the age of maj......
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Steed v. Steed
...an in camera interview with the daughter in this case, but a transcript of that interview is not before us on appeal. This court held in Ezell v. Hammond: "`Alabama has long recognized that judges may conduct in camera interviews with minor children, who are the subject of divorce custody p......