Patronas v. Patronas

• Decision Date: 30 August 1996
• Parties: Deborah K. PATRONAS v. Otha Phillip PATRONAS. 2950698.
• Court: Alabama Court of Civil Appeals

Page 469

693 So.2d 469

Deborah K. PATRONAS v. Otha Phillip PATRONAS.

2950698.

Court of Civil Appeals of Alabama.

Aug. 30, 1996.

Rehearing Denied Oct. 4, 1996.

Buzz Jordan and A. Jerome Dees of Huntley, Jordan & Associates, Mobile, for Appellant.

Mavanee R. Bear, Mobile, for Appellee.

L. CHARLES WRIGHT, Retired Appellate Judge.

The parties were divorced in 1990. Custody of the parties' two minor children was awarded to the mother. In 1995 the father filed a petition, requesting that he be awarded custody. At the time of the hearing, the parties' daughter was nine years of age and their son was seven years of age. Following oral proceedings, the trial court awarded custody to the father. The mother appeals.

In its order awarding custody of the children to the father, the trial court did not state which standard it found to be applicable, and it made no specific findings of fact. Since the facts of this case present a classic Ex parte McLendon, 455 So.2d 863 (Ala.1984), scenario, we presume that the trial court correctly applied that standard. Furthermore, in the absence of specific findings of fact, appellate courts will presume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous. Ex parte Bryowsky, 676 So.2d 1322 (Ala.1996).

When there is a prior custody decree, the parent seeking the change in custody has a very stringent burden of proof. King v. King, 636 So.2d 1249 (Ala.Civ.App.1994). Merely showing that a material change in circumstances has occurred since the last decree is not sufficient. Although the best interests of the child are paramount, the petitioner must show that a change in custody will materially promote the child's best interests and that the benefits of the requested change will more than offset the inherently disruptive effect caused by uprooting the child. Ex parte McLendon; Whitfield v. Whitfield, 570 So.2d 700 (Ala.Civ.App.1990). The party seeking modification must prove that the "material changes affecting the child's welfare since the most recent decree demonstrate that custody should be disturbed to promote the child's best interests." Wood v. Wood, 333 So.2d 826 (Ala.Civ.App.1976).

Although the trial court is afforded great discretion in determining matters of child custody, its judgment is subject to reversal if shown to be plainly and palpably wrong. King.

The father's request that he be granted custody of the children was based primarily on the mother's alleged addiction to prescription drugs. The father presented evidence that the mother had procured prescription medication from 26 different doctors in the 3 years preceding the hearing. The father entered into evidence the deposition of Dr. Joseph Thomas, a psychiatrist. Dr. Thomas reviewed the lists of medications that the mother was taking. He was not her treating physician and, in fact, had never met the mother. Based on the lists of medications, he could not conclusively state that the mother was addicted to prescription medication.

Dr. Vern Harpole, the mother's treating family practitioner, testified on the mother's behalf. Dr. Harpole saw the mother approximately four times in the six months preceding the hearing. He testified that he was treating her for anxiety, due primarily to the custody issue. After reviewing the lists of medications presented by the father and the results of the mother's records regarding her blood screening for the detection of drug abuse, Dr. Harpole opined that all of the mother's laboratory tests were normal and that there was nothing to indicate that the mother was abusing drugs. He explicitly stated that the lists of medications that the father presented for the doctor's review did not appear to show excessive use. He reached this conclusion based on the mother's physical and mental history.

The record reflects that in November 1992 the mother suffered a grand mal seizure. As a result, she was required to take prescription medication. In February 1994 she was involved in an automobile accident, which caused her to undergo several surgeries and ultimately cost her the loss of five percent of her liver. Following this accident, she spent 14 days in the University of South Alabama Hospital. She saw numerous doctors during this period.

In March 1995 she was involved in another vehicular mishap when a truck that she was following lost one of the pallets it was carrying. She suffered a herniated disc in her neck, which required the administration of prescription drugs and other medical treatment.

The father also asserted that the mother was involved in immoral behavior, involving living with an unrelated man in the presence of her children. The father failed to present any "credible" evidence to substantiate this claim. Furthermore, even if the allegations were proven, the father failed to show that the mother's conduct had a detrimental effect on the children. Smith v. Smith, 586 So.2d 916 (Ala.Civ.App.1991).

The trial court appointed an expert, Dr. Nancy DeVaney, a licensed clinical social worker and registered custody evaluator, to perform a custody evaluation. Dr. DeVaney administered various tests to the parties, interviewed the parties and the children, and interviewed others familiar with the parties and the children. Dr. DeVaney basically concluded that the children were at risk in their present environment. She stated, "I believe the children are at risk because based on the information that I have available to me, I think there's extensive drug use." She continued, "I'm basing that on the fact that [the mother has] seen 26 different doctors in a three-year period for various medical problems." Dr. DeVaney's report also contained the following observations: "All three adults [the mother, the father, and the father's current wife] appear to be fairly well-differentiated from [the children] and do not appear to be raising them to meet their own needs." "Information obtained through clinical interviews and from [a test] confirm [the mother's, the father's, and the father's current wife's] knowledge of [the children's] likes and dislikes...." "In terms of behavior, both parents have voiced acceptable expectations of [the children]." "Each of the three adults exhibited an enthusiastic, warm, and interested voice quality with congruent facial features while communicating with the children in my presence."

Dr. Cheryl Rose, a counselor, and the director of the Helping Children Cope with Divorce program, testified that she first met the mother in 1986. At that time Dr. Rose was a counselor with the Family Counseling Center. The mother contacted the center after experiencing abusive episodes by the father. The mother and Dr. Rose have maintained a relationship since that time. Dr. Rose had an opportunity to review Dr. DeVaney's report and disagreed with Dr. DeVaney's findings. Dr. Rose opined that the mother did not have a problem with drugs, that the mother was a good and fit parent, and that the children should stay with the mother. Dr. Rose's major concern regarding the children was their interaction with the father. Dr. Rose testified that both children told her that while visiting their father, they had experienced their father abusing his current wife. When questioned as to whether she...