C.A.B. v. C.B.B.

640 So. 2d 943, 1994 Ala. Civ. App. LEXIS 238, 1994 WL 221391
CourtCourt of Civil Appeals of Alabama
DecidedMay 27, 1994
DocketAV92000613
StatusPublished

This text of 640 So. 2d 943 (C.A.B. v. C.B.B.) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
C.A.B. v. C.B.B., 640 So. 2d 943, 1994 Ala. Civ. App. LEXIS 238, 1994 WL 221391 (Ala. Ct. App. 1994).

Opinions

ROBERTSON, Presiding Judge.

This is a custody modification case.

On July 23, 1992, C.A.B. (father) filed a petition in the Mobile County Circuit Court, Juvenile Division, to determine the paternity and custody of E.A.B., a seven-month-old infant boy. The father’s petition alleged that E.A.B. was born to C.B.B. (mother) in December 1991, and that the minor child was residing with the mother. In his petition, the father acknowledged that he was the father of the minor child and requested that he be awarded custody of the minor child.

On September 14, 1992, following an ore tenus proceeding, the trial court entered a judgment, finding C.A.B. to be the father of the minor child; however, the trial court denied the father’s petition for custody. The trial court awarded custody of the minor [944]*944child to the mother and awarded the father certain visitation rights. The trial court also ordered the father to pay child support to the mother in the amount of $251 per month.

On December 2, 1992, the father filed a petition to modify the custody order of September 14, 1992, seeking custody of the minor child because of a material change in circumstances. On February 8,1993, following an ore tenus proceeding on February 5, 1993, the trial court entered a judgment, awarding custody of the minor child to the father, suspending the father’s child support obligation, and awarding the mother visitation on alternate weekends. The trial court also ordered the mother to attend alcohol and substance abuse counseling and to submit to a psychological evaluation. The trial court set the case for review on June 4,1993.

On June 14, 1993, following an ore tenus proceeding on June 10, 1993, the trial court entered a judgment, returning custody of the minor child to the mother, awarding the father certain visitation rights, and ordering the father to pay child support in the amount of $251 per month.

The father appeals, contending that the trial court erred in its determination of custody.

It is well-established law in Alabama that once a parent has been awarded custody of a child, the noncustodial parent seeking a change in custody has the heavy burden of proving that a change of custody would materially promote the child’s best interests and welfare and that the benefits of such a change would outweigh the disruptive effect caused by the change. Ex parte McLendon, 455 So.2d 863 (Ala.1984); Powell v. Boyd, 601 So.2d 1039 (Ala.Civ.App.1992). It is also well established that the judgment of the trial court as to child custody following an ore tenus proceeding is presumed correct and will not be disturbed on appeal unless it is unsupported by the evidence so as to be plainly and palpably wrong or an abuse of discretion. Powell, supra.

The record reflects that in the February 5, 1993, hearing the mother’s 12-year-old daughter (who is not the daughter of C.A.B.) testified that after she went to live with her mother, they moved seven times in one year. The daughter also testified that she had missed 11 days of school in the first semester because her mother made her stay at home to babysit E.A.B., her youngest half-brother (she has another half-brother and a half-sister), and that as a result of the days that she missed, her grades were C’s and D’s. The daughter further testified that her mother’s boyfriend lived with them and that she had seen him hit her brothers. She also testified that her mother drank alcohol and that she had seen her mother smoke marijuana. The daughter testified that her mother would go out a few nights each week and that most of the time, she was left in charge of her younger brothers and sister. She further testified that she had seen her mother in physical fights with men and women. The record reflects that at the time of the hearing, the mother’s 12-year-old daughter was living with her father and that she was making A’s and B’s in school.

The mother’s grandmother, F.M., testified that the mother had in the past lived with her and her husband, and that she took care of the minor children when they lived with her. The grandmother testified that she and her husband had many times assisted the mother financially with rent, utilities, and court fines. The grandmother also testified that she had smelled alcohol on the mother, that she had seen the mother drunk on many occasions, and that she had seen a cabinet full of vodka bottles in the mother’s house when she was babysitting the minor children. The grandmother further testified that she had seen marijuana butts in ashtrays in the mother’s house and when she asked the mother about the marijuana butts, the mother’s only response was to empty the ashtray. The grandmother also testified that on numerous occasions when she would call the mother’s house to check on the minor children, the mother would not be at home and the minor children would not know where she was. The grandmother also testified that the father took good care of E.A.B. and that she was concerned about the minor child’s welfare if he stayed with his mother.

M.D., a friend of the mother, testified that she had been to the mother’s house on two [945]*945occasions, once in the evening and once in the early morning, and that on both occasions she had found the mother’s 12-year-old daughter alone with her brothers and sister. R.M.R., the father of the mother’s 12-year-old daughter, testified that he had been married to the mother and that he saw her every other weekend when he went to pick up their daughter for visitation. R.M.R. further testified that the mother was drunk quite often when he went to her house and that he had seen her smoke marijuana cigarettes. R.M.R. also testified that when he would go to the mother’s house, he would see E.A.B., his brother, and his sisters, and they would be dirty.

The father testified that when he would pick up E.A.B. for visitation, he would be dirty and would have bruises about his body. The father also testified that he took the minor child to the doctor when he was sick, when he found a big knot on the minor child’s head, and when he found a big cut on the minor child’s leg. The father further testified that he had seen the mother drunk on many occasions and that he had seen her drinking every weekend that he went to pick up the minor child. The record reflects that this evidence resulted in the award of custody of the minor child to the father.

In the subsequent hearing on June 10, 1993, the mother’s grandmother testified that the mother was no longer drinking, that the mother had changed her life around, and that the mother would now be a good mother to the minor child. C.A.T., Jr., the mother’s landlord, testified that the mother was a changed person, that she stays at home more than she used to, and that she stays with the minor children when they visit her.

The mother testified that she had married her boyfriend, that both of them had good jobs, and that she was no longer drinking or going out at night. The mother did admit in her testimony that she had been involved in some misconduct or neglect of her children before the February hearing and that she did not currently have any of her children living with her. The mother further testified that it had been hard without her children and that she loves and can care for E.A.B. She also testified that the father had taken good care of the minor child and that she did not have any complaints about the father’s care of the minor child.

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Related

Ex Parte McLendon
455 So. 2d 863 (Supreme Court of Alabama, 1984)
Powell v. Boyd
601 So. 2d 1039 (Court of Civil Appeals of Alabama, 1992)
Sims v. Sims
515 So. 2d 1 (Court of Civil Appeals of Alabama, 1987)
Ex Parte J.P.
641 So. 2d 276 (Supreme Court of Alabama, 1994)

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Bluebook (online)
640 So. 2d 943, 1994 Ala. Civ. App. LEXIS 238, 1994 WL 221391, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cab-v-cbb-alacivapp-1994.