Means v. Means
| Decision Date | 15 July 1987 |
| Parties | Connie Delane MEANS v. Stephen Arden MEANS. Civ. 5788. |
| Court | Alabama Court of Civil Appeals |
Allen Millican, Gadsden, for appellant.
Jack Floyd and Mary Ann Stackhouse of Floyd, Keener, Cusimano & Roberts, Gadsden, for appellee.
This is a child custody modification case.
The parties to the present litigation were married on July 31, 1971 and were separated on October 21, 1985. On November 27, 1985 the wife filed for divorce. The parties entered into a settlement agreement on April 1, 1986, and on April 2 the trial court entered judgment on the agreement and incorporated the agreement into the final divorce decree.
The specific terms of the agreement provided that both parents would have joint and equal custody of the parties' minor son and that the wife would have physical custody from September 1 to May 31 of each year, while the husband would have physical custody from June 1 to August 31. Additionally, the custody agreement provided that the parent with whom the child was residing would grant the other parent liberal visitation.
On July 25, 1986 the husband filed a petition to modify the final custody decree. The husband, in his petition to modify the final decree, alleged that a change in circumstances had occurred since the entry of the final judgment in that the wife had left the state to take advantage of a job opportunity in Mississippi. The husband also alleged that the best interests of the child would be served by placing him in the husband's full custody. The wife also filed a petition to modify the child custody decree to give her primary custody of the child.
The trial court held a hearing on the petitions to modify the final decree on September 15, 1986. At the conclusion of the hearing, the trial court entered judgment modifying the final divorce decree to grant physical custody to the husband from September 1 to May 31 and to grant physical custody to the wife from June 1 until August 31. In its judgment the trial court held that it was attempting to effectuate the intent of the parties expressed in their agreement which was incorporated into the divorce decree. The trial court also held that the wife had violated the spirit of that agreement by removing the parties' son from Alabama.
The wife subsequently made a motion for reconsideration of the trial court's order modifying the decree. The trial court denied the wife's motion to reconsider and the wife appealed.
The wife argues on appeal that the trial court applied an incorrect standard in determining whether the original custody decree should be modified and that the trial court's judgment is unsupported by the evidence. The husband, on the other hand, argues that no abuse of discretion is evident from the trial court's order, and, therefore, that its judgment should be affirmed.
At this juncture, we note that the standard of proof required for a prior custodial parent to regain custody after he or she has either lost custody due to a prior judicial decree or voluntarily relinquished custody is whether the benefits of the proposed change in custody outweigh the disruptive effects of such a change. See, Ex parte McLendon, 455 So.2d 863 (Ala.1984). In the present case, however, neither parent lost custody or forfeited custody in the prior proceeding; rather, both parents had joint custody of their minor son. Thus, McLendon is inapplicable and the appropriate burden of proof is whether a change in circumstances has occurred such that it was in the child's best interests that the decree be modified to transfer primary physical custody to the husband and whether the party asking for modification has alleged and proved changed conditions sufficient to warrant a modification. See, Adams v. Adams, 416 So.2d 428 (Ala.Civ.App.1982).
The evidence in the present case reveals that the wife moved away from her home in Albertville, Alabama and took the parties' minor son out of the state with her. The wife moved to Columbus, Mississippi because she received a job opportunity which afforded her the chance to make more money with which to support herself and her minor son.
The husband argued at trial that the wife's out-of-state move violated the spirit of the parties' agreement and constituted a material change in circumstances. The agreement was silent as to the effect of either party's change of residence.
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