Hovater v. Hovater

• Decision Date: 29 August 1990
• Citation: 577 So.2d 461
• Parties: Anita Kay HOVATER v. Jeff Baron HOVATER. Civ. 7618.
• Court: Alabama Court of Civil Appeals

Page 461

577 So.2d 461

Anita Kay HOVATER v. Jeff Baron HOVATER.

Civ. 7618.

Court of Civil Appeals of Alabama.

Aug. 29, 1990.

Rehearing Denied Oct. 3, 1990.

Certiorari Quashed March 22, 1991

Alabama Supreme Court 1900108.

Becky Meyer, Decatur, for appellant.

W. H. Rogers, Moulton, for appellee.

L. CHARLES WRIGHT, Retired Appellate Judge.

The Hovaters were divorced in September 1989. There were two children born during their marriage. The judgment of divorce incorporated an agreement of the parties as to the custody of the children and their support. The two portions of the judgment pertinent to this appeal provided:

(a) "[T]he parties shall jointly share the custody of the minor children, namely Amy Hovater, age eight (8) and Abby Hovater, age four (4), with the [mother] having primary physical custody during the regular school year and the [father] having primary physical custody during the summer school vacation period.

"....

(b) "It is further Ordered that both parties shall maintain their residence within the Mt. Hope School District so that the children will attend Mt. Hope schools and if either party moves outside of the school district or fails to send the children to Mt. Hope schools physical custody will [be] vested in the other party during the school year and the failing party will have physical custody during the summer vacation months."

The two quoted provisions were separated in the judgment by extensive provisions for support of the children, visitation, and division of real and personal property. A motion to set aside the judgment was filed by the mother the day following its entry. The father, five days later, filed a petition for an order of contempt and to modify the judgment as to the physical custody of the children in accord with the provisions of (b) set out hereinabove. The petition of the father to modify charged that the mother had enrolled the older child in a school other than the Mt. Hope school.

The posttrial motion of the mother was duly heard before the court and denied. Subsequently the mother filed a petition to modify custody, alleging that the restrictive custodial reversionary clause found in the original decree was detrimental to the best interests and welfare of the children. The petitions to modify custody of the children were heard by the court and judgment was entered on December 11, 1989.

That judgment, in summary, found that the mother had violated the terms of the judgment of September 12, 1989 by removing the older child from the Mt. Hope school and enrolling her in a Decatur, Alabama school. Such action by the mother invoked the operative language of the September judgment as to a change of physical custody of the children. The court further found that there had been a material change of circumstances since the September judgment and that a change of physical custody of the children would be consistent with the best interests of the children. The court then ordered and adjudged that the joint custody of the children by the parties would continue, but because of the operative provisions of the original judgment of divorce and because of a material change of circumstances, it would be consistent with the best interests of the children that their physical custody be changed from the mother to the father during the school year and back to the mother during the summer. There was also a new determination of child support due from the father.

The mother appeals and contends that the trial court abused its discretion in changing physical custody and decreasing child support.

Initially, we find that the trial court erred in effectuating the custodial reversionary clause found in the original decree. We do not reach this decision casually. We rely on a comparative analysis with the analogous line of cases disfavoring escalated child support payments. See Morrison v. Kirkland, 567 So.2d 363 (Ala.Civ.App.1990); Forlini v. Forlini, 455 So.2d 855 (Ala.Civ.App.1983); Langford v. Langford, 441 So.2d 962 (Ala.Civ.App.1983).

In Morrison we found that the disfavor with escalated child support payments stems from the fact that there is no evidentiary basis for the determination of the future events and that there exists an adequate procedure for modification when changes in circumstances do occur. We determined in Morrison that the trial court could not speculate on the future ability of the parent to pay or on the future needs of the children. Likewise, in our situation, who is to say that it will be in the children's future best interests to stay at the Mt. Hope school or to even reside in the Mt. Hope community? We realize that in giving effect to the custodial reversionary clause the trial court was simply attempting to effectuate the agreement of the parties. We find, however, the custodial reversionary clause in this instance to be of no effect because it is premised on a mere speculation of what the best interests of the children may be at a future date. We have found that an agreement of the parents is conclusive of the children's best interests only as long as the status of the parties at the time remains unchanged. Means v. Means, 512 So.2d 1386 (Ala.Civ.App.1987). The trial court's reliance on the operative language of the reversionary clause in changing the custodial arrangement in this instance is misplaced.

In reaching its decision to change the custodial arrangement, the trial court did not rely solely on the operative language of the reversionary clause, but additionally found that the change in custody was warranted because there had been a material change in circumstances since the September judgment and that a change of physical custody would be consistent with the best interests of the children. We must now determine whether the trial court used the correct standard in modifying the prior custodial arrangement.

Generally, the party seeking to modify a prior custodial decree bears the stringent burden of proving that the proposed change in custody will "materially promote" the children's best interests and welfare. The benefits of moving the children must outweigh the traumatic effects caused by the uprooting of the children from their present custodian. Ex parte McLendon, 455 So.2d 863 (Ala.1984). Where there is no prior order granting exclusive physical custody to one parent, however, the McLendon standard is not applicable. Ex parte Couch, 521 So.2d 987 (Ala.1988). If exclusive physical custody has not been awarded to one parent, the "best interests and welfare" of the children standard applies. Couch; Scott v. Scott, 563 So.2d 1044 (Ala.Civ.App.1990).

Here, the parties initially agreed that they would "jointly share the custody of the minor children ... with the [mother] having primary physical custody during the regular school year and the [father] having primary physical custody during the summer school vacation period." We conclude that, by the use of the term "joint custody" and by the division of physical custody, the parties and the trial court envisioned a "joint legal" and "joint or split physical" custodial arrangement. Because neither party was awarded exclusive physical custody, the proper standard of review was the "best interests and welfare" of the children as opposed to the more stringent burden established by McLendon. See Means.

The trial court applied the correct standard in its review of the custody arrangement. We must now determine if the trial court correctly applied the law to the facts.

The record reveals that a change in the mother's circumstances occurred after the divorce. The change encompassed a residential move to Moulton, Alabama, a city eighteen miles from Mt. Hope; a new job in Decatur, Alabama; and the enrollment of the older daughter into a Decatur school, a school in close proximity to the mother's place of employment. The mother testified that the change in residence was necessitated by the initial decree, in which the marital home was awarded to the father. She testified that there were no apartments in Mt. Hope nor were there any houses for reasonable rent. The evidence further revealed Mt. Hope to be a small...