Powell v. Boyd

• Decision Date: 02 July 1992
• Citation: 601 So.2d 1039
• Parties: Melanie R. Boyd POWELL v. Bret D. BOYD. 2910182.
• Court: Alabama Court of Civil Appeals

Page 1039

601 So.2d 1039

Melanie R. Boyd POWELL v. Bret D. BOYD.

2910182.

Court of Civil Appeals of Alabama.

July 2, 1992.

Wayne L. Williams of Williams and Williams, Tuscaloosa, and H. Edgar Howard, Birmingham, for appellant.

L. Scott Coogler of Coogler & Copeland, P.C., Tuscaloosa, for appellee.

ROBERTSON, Presiding Judge.

This is a child custody modification case.

Melanie R. Boyd Powell (mother) and Bret D. Boyd (father) were divorced on October 22, 1987. The trial court incorporated into its final judgment of divorce an agreement between the parties. Pursuant to this agreement the full care, custody, and control of the parties' two sons, ages four years and one and a half years, was awarded to the father, subject to the mother's liberal visitation rights.

On October 17, 1989, the mother filed a petition to change custody. In her petition, the mother alleged that the father was deliberately and unreasonably preventing her from exercising her visitation rights and that a significant change in circumstances had occurred since the final judgment of divorce. The trial court conducted a hearing on August 15, 1990, on the mother's petition to change custody. At the close of the mother's case-in-chief, the trial court entered a directed verdict for the husband, denying the mother's petition to modify custody because she had not met the burden of proof to effect a change in custody.

On January 9, 1991, less than five months later, the mother filed another petition to change custody, alleging that there had been a material change in circumstances effecting the welfare of her sons since the last judgment. The petition alleged that the father's wife (stepmother) was the principal caretaker of the boys and that she had spent approximately thirty days in psychiatric care since the last hearing. The petition also alleged that the mental condition of the stepmother was having a detrimental effect on the boys. Further, the petition alleged that the mother has continued to find bruises on her youngest son and that these bruises were the result of excessive punishment by the stepmother.

Following an ore tenus proceeding, the trial court again denied the mother's petition to change custody. The trial court found that the mother had "failed to demonstrate to the [trial court] that [the father] and his wife are unfit parents, that [the mother] can provide a better home or environment for the children, or that a move would materially benefit the welfare and best interests of the children."

The mother's post-judgment motion was denied, and she appeals.

The issues raised by the mother on appeal are whether the trial court's failure to find a substantial change of circumstances was an abuse of discretion, and whether the trial court erred by having an in camera discussion with a material witness.

It is well-established law in Alabama that once a parent has been awarded custody of a child, the noncustodial parent seeking a change of custody must show that a change in custody would materially promote the child's best interests and welfare to such a degree that more than offsets the disruptive effect created by uprooting the child from his regular environment. Ex parte McLendon, 455 So.2d 863 (Ala.1984). It is also well established that a trial court's judgment as to child custody following an ore tenus proceeding is presumed to be correct and will not be disturbed on appeal unless it is so unsupported by the evidence as to be plainly and palpably wrong or an abuse of discretion. Walker v....