Mayhew v. Monroe

• Decision Date: 20 March 1998
• Parties: Judith M. Monroe MAYHEW v. Ted A. MONROE.
• Court: Alabama Court of Civil Appeals

727 So.2d 101

Judith M. Monroe MAYHEW v. Ted A. MONROE.

2961363.

Court of Civil Appeals of Alabama.

March 20, 1998.

Rehearing Denied April 24, 1998.

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

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

HOLMES, Retired Appellate Judge.

The parties married in 1985. A son was born of the marriage in May 1990. The parties separated in August 1993 and obtained a divorce in September 1993.

The parties executed an agreement, wherein they agreed that the mother was to have custody of the son, subject to the father's visitation rights. The trial court adopted the parties' agreement in its divorce decree.

In November 1996 the father filed a petition for modification, requesting that the trial court award him custody of the son. The father alleged that such a change in custody "would materially promote [the son's] welfare and best interests as opposed to [the son's moving to Michigan with the mother]." The father further alleged that because the son had lived in the Arab and Blountsville area all of his life, a move with the mother to Michigan "would be extremely disruptive to [the son] and would be uprooting him from the extended family and relationships that he has known all of his life."

The mother filed an answer and a counter-petition for modification, which stated the following, in pertinent part: "In the event that [the mother] is transferred by her employer out of the State of Alabama, [the mother] requests that [the father's] visitation privileges with the [son] be modified accordingly."

After a hearing the trial court issued an order, finding that "[b]oth parents are not merely `good' parents, they are exemplary parents and have been since their divorce." The trial court's order also stated the following, in pertinent part:

"SECOND: Assuming that the [mother] does not choose to accept the job offered in Battle Creek, [Michigan], but rather remains in or near her present residence, the court hereby finds that the [father] has not met the burden required by McLendon and the complaint for modification is, and will be, denied.

"THIRD: The [father], at least by the psychological evidence presented, seeks not to have a new `tender years' presumption recognized by the court, but rather a presumption that would favor fathers of school age male children. The court feels that this is contrary to both the spirit and letter of the law abolishing gender distinctions. Likewise, the court will not recognize a rule in our mobile society which automatically prohibits a custodial parent from moving for valid reasons, such as job necessity, to other locations. The cases cited by the [father] make it clear, however, that although a proposed change of a child's residence is only one factor for the court to consider in making a change-of-custody decision, it is indeed a factor to be considered. Without elaborating, this court finds that if the [mother] does accept the proposed job in Michigan (or similar location far from this area), it would be in the child's best interests to transfer custody to the [father] and that the benefits of remaining in close contact with the [father] and in close contact with the members of both [the father's] and [the mother's] extended families would, in fact, outweigh the negative effect that such change of custody would have. This court hereby orders that upon the [mother's] accepting such job in Michigan (or similar remote location), then the provisions of the prior judgment be, and hereby are, amended to award custody to the [father], subject to visitation and support to be specified and computed at that time."

(Emphasis added.)

The mother appeals, contending that the trial court abused its discretion when it ordered that custody of the parties' son would change from the mother to the father if the mother moves out of the state to retain her employment.

Initially, we note that when a trial court hears the evidence and makes a determination, that determination is presumed correct and will not be disturbed on appeal unless the evidence so fails to support the determination that it is plainly and palpably wrong or an abuse of discretion. Tice v. Tice, 505 So.2d 1235 (Ala.Civ.App.1986).

It is well settled that in a child custody modification case, the court's primary concern is the welfare of the child and that the parent seeking a change in custody has the burden of proving that the change would materially promote the welfare and best interests of the child. Voloshik v. Voloshik, 505 So.2d 1233 (Ala.Civ.App.1986); Tice, 505 So.2d 1235.

This court stated the following in Vail v. Vail, 532 So.2d 639, 641 (Ala.Civ.App.1988): "A change in the custodial parent's place of residence does not, of necessity, justify a change in child custody even where the relocation by the custodial parent is outside of the United States; however, such change is a factor to be considered."

In the present case the mother points out that her proposed move is based neither on a whim nor on a desire to limit the son's contact with his father. On the contrary, the proposed move is for economic and employment reasons—the mother has been employed by the U.S. Army for 15½ years, and her job in the logistics field is being moved from Redstone Arsenal to Battle Creek, Michigan. If the mother does not accept the transfer, she will be without employment. The mother testified that the job in Michigan provides more career stability and requires less travel than her current position.

At the hearing the mother acknowledged that she permitted the father to exercise more visitation than was...