Murphy v. Murphy

• Decision Date: 04 September 1985
• Citation: 479 So.2d 1261
• Parties: Stanley J. MURPHY v. Jody H. MURPHY. Civ. 4718.
• Court: Alabama Court of Civil Appeals

Page 1261

479 So.2d 1261

Stanley J. MURPHY v. Jody H. MURPHY.

Civ. 4718.

Court of Civil Appeals of Alabama.

Sept. 4, 1985.

Rehearing Denied Oct. 9, 1985.

Certiorari Denied Nov. 27, 1985

Alabama Supreme Court 85-101.

Perry Hubbard of Hubbard, Waldrop, Reynolds, Davis & McIlwain, Tuscaloosa, for appellant.

Robert B. Harwood, Jr. of Rosen, Harwood, Cook & Sledge, Tuscaloosa, for appellee.

HOLMES, Judge.

This is a case involving child custody and visitation.

The former wife petitioned for modification of a child custody decree which dictated that the residence of the minor child could not change without permission of the husband or the trial court.

After an ore tenus hearing, the trial court modified the earlier decree and allowed the mother and child to move to another location within this state. The trial court thereafter necessarily modified the husband's visitation rights.

The husband, through able and distinguished counsel, appeals, contending in the main that the trial court erred in granting the requested "modification" of the child custody decree. We do not agree and affirm.

Viewing the record with the attendant presumptions of correctness, we find the following is revealed:

The parties were divorced in 1983, and later a settlement agreement, dealing in part with child custody, was ratified by the trial court. The settlement agreement stated that the wife would have primary custody of the parties' minor child and the husband would have substantial visitation rights and would actively participate in rearing the child.

The agreement further stated that the child shall reside in Tuscaloosa County and neither parent shall attempt to change the child's residence without the permission of the other parent or the approval of the trial court through a modification of the custody decree.

At the time of the settlement agreement, the wife worked as a copywriter at a local radio station. There was evidence presented at the initial hearing that the wife had little, if any, chance of advancement in her position at the local station.

In November 1984, the wife was offered a position at another radio station in the Fairhope, Alabama, area. The position afforded not only an increase in salary but also an unlimited potential for future advancement.

The wife, as directed in the settlement agreement, sought permission from the husband to move with the child to Fairhope. The husband, however, refused to agree to the change of residence.

The wife then filed a petition for modification, seeking the approval of the trial court for a change of the child's residence.

The trial court heard testimony presented by both parties and approved the modification of the previous custody decree, allowing the mother and child to move to Fairhope. The trial court also modified the father's visitation rights to allow the father "custody" on most alternating weekends and several weeks during the year.

The husband contends that the proposed modification involves a change of custody and that there was no evidence that the change would "materially promote" the welfare of the child as required by Ex parte McLendon, 455 So.2d 863 (Ala.1984). The mother contends that the proposed modification is only a modification of visitation rights and that, therefore, the trial court has wide discretion in granting such modification. This court does not entirely agree or find controlling either contention.

In any event, as stated, the father appeals, contending that the trial court erred in modifying the previous custody decree.

At the outset, we note that, as in all cases presented ore tenus, our review of the trial court's judgment is controlled by the principle that this court will not substitute our judgment for that of the trial court and will reverse only where the evidence shows that the trial court's decision was plainly and palpably wrong. Crane v. Crane, 392 So.2d 242 (Ala.Civ.App.1980).

Additionally, the modification of a child custody decree is a matter vested within the sound discretion of the trial court, whose judgment is presumed to be correct on appeal. Ham v. Barnes, 418 So.2d 166 (Ala.Civ.App.1982).

Most modification of custody decree matters before this court have involved the change of custody from one parent to another. As our supreme court has stated, the burden of proof when changing custody of a child is that the change must "materially promote" the welfare of the child. See Ex parte McLendon, 455 So.2d at 866. See also Beene v. Hester 471 So.2d 422 (Ala.Civ.App.1985); Cook v. Cook, 462 So.2d 370 (Ala.Civ.App.1984).

In the instant case, however, the modification of the child custody decree only involves the question of whether the child can or should reside with his mother, the custodial parent, in another area of the state. Under the settlement agreement, both parties agreed that the trial court could approve or disapprove such a move.

It appears to this court that, under these facts, the trial court should be guided by the best interests of the child. See Jenkins v. Jenkins, 395 So.2d 1045 (Ala.Civ.App.1981); Gandy v. Gandy, 370 So.2d 1016 (Ala.Civ.App.), cert. denied, 370 So.2d 1019 (Ala.1979).

The facts indicate that the wife was offered a position of employment in another area of the state. This new employment included an increase in salary along with the possibility of advancement. As stated, there was testimony that the wife had little chance of promotion or a higher salary at her present job.

There was also testimony from the husband that the monthly child...