Vail v. Vail

• Decision Date: 13 July 1988
• Citation: 532 So.2d 639
• Parties: David Lee VAIL v. Ginger Kathryn VAIL. Civ. 6397.
• Court: Alabama Court of Civil Appeals

Page 639

532 So.2d 639

David Lee VAIL v. Ginger Kathryn VAIL.

Civ. 6397.

Court of Civil Appeals of Alabama.

July 13, 1988.

Joseph G. Pierce of Drake, Knowles & Pierce, Tuscaloosa, for appellant.

Douglas Corretti and James Robert Scalo of Corretti & Newsom, Birmingham, for appellee.

EDWARD N. SCRUGGS, Retired Circuit Judge.

The parties have two minor children. The mother sought permission from the Circuit Court of Tuscaloosa County, Alabama to move the children with her from Tuscaloosa to Kennesaw, Georgia. The father counterclaimed for a change of child custody.

The 1986 judgment which divorced the parties was rendered by that Alabama court. Custody of the children was awarded to the mother with the father's liberal visitation rights to be in substantial accord with his visitation privileges as they were then being exercised. The divorce judgment further provided that the mother would seek approval of the trial court before establishing a residence with the children outside of Tuscaloosa County.

In the present proceedings the mother was granted the right to move the children to Kennesaw pendente lite. After the concise testimony of the parties and their stipulations were presented ore tenus to the trial court, a final judgment was rendered and entered which denied the husband's counterclaim and which allowed the mother to permanently move the children to Kennesaw. The father appealed.

We have carefully studied all of the evidence. The briefs of able counsel for each of the parents have been beneficial to us.

The children, who are now six and two years of age, are fortunate in that, from all appearances, the mother and the father are both exceptional parents. Neither parent finds or voices any parental fault with the other.

The father testified that the mother's present husband is a "really nice guy." He further testified as to the strong ties which the children have established in the Tuscaloosa community, where they have always resided, and to the strong father-children relationship that exists. He stated that the children visit with him one day each week and three weekends each month, that they see each other almost daily, and that he and the children will be deprived of much of their association with each other if the children are allowed to permanently move to Georgia. While he did not want their exclusive custody, he sought joint custody.

The mother presented evidence that her present husband, whom she married in December 1987, has a substantial position with a major Atlanta, Georgia newspaper; that the Kennesaw residence where they and the children now reside is ample and suitable in all respects; that they reside in a "swimming and tennis community" where children's recreation exists; that the home is within one mile of schools, daycare centers, and churches; and that the children have already established new relationships and have new friends in Kennesaw.

The mother was granted custody of the children via the 1986 divorce judgment. Consequently, the standard of proof as to the father's recent counterclaim for a change of custody is whether the benefits of his proposed change in custody outweigh the disruptive effects...