Cox v. Ratcliff

753 So. 2d 535, 1999 Ala. Civ. App. LEXIS 843, 1999 WL 1046458
CourtCourt of Civil Appeals of Alabama
DecidedNovember 19, 1999
Docket2980921
StatusPublished

This text of 753 So. 2d 535 (Cox v. Ratcliff) 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
Cox v. Ratcliff, 753 So. 2d 535, 1999 Ala. Civ. App. LEXIS 843, 1999 WL 1046458 (Ala. Ct. App. 1999).

Opinion

MONROE, Judge.

The parties married in February 1992, and divorced in September 1995. There was one child born of the marriage, a son born in 1992. Although the parties’ divorce judgment' is not contained in the record, the parties’ testimony indicates that the mother was awarded custody of the minor child, with visitation rights vested in the father, and the father was ordered to pay child support.

In August 1996, the father quit exercising his visitation rights, and he also quit paying child support. In February 1998, the mother married Lonnie Cox, who has custody of his two daughters, ages 13 and 14. The mother testified that in May 1998, she, her husband, and their children decided to move to Texas because her husband had a job lined up as the manager of a Busy Bee restaurant and because her husband had family who lived in the area of Texas where they planned to move. The maternal grandmother testified that they moved because the mother was running from the maternal grandmother and because the mother’s husband was making [536]*536good on his threat that he would take the mother and the minor child far away from the maternal grandmother.

In May 1998, the father, who had not visited with the minor child or even paid child support since August 1996, petitioned the court to modify the custody portion of the parties’ divorce decree. The petition stated that the father had been contacted by the maternal grandmother, who told him that the mother planned to move to Texas with the parties’ minor child. The father stated that he had remarried and that he could provide a stable environment for the minor child and that he feared for the safety and well-being of the parties’ minor child and felt that it would be in the child’s best interest for custody to be removed from the mother and vested in the father. The father also requested temporary legal and physical custody of the minor child, pending a final hearing. To his petition to modify, the father attached his affidavit and an affidavit executed by the maternal grandmother.

On June 25, 1998, the trial court issued an ex parte order placing custody of the minor child with the father, pending the final hearing in this matter. The trial court noted in its order that the mother was not present at the hearing and that service had not been perfected on the mother. Thereafter, the father went to Texas to get the child and bring him back to Alabama.

In July 1998, the maternal grandmother filed a petition to intervene, seeking grand-parental visitation rights. The grandmother alleged that although she has been an integral part of the minor child’s life, the father, who did not exercise his visitation rights or attempt to be involved with rearing the minor child for almost two years and who did not pay child support during that two-year period, had refused to allow her visitation with the minor child since he had gained temporary custody. The trial court issued a pendente lite order, awarding the maternal grandmother visitation on alternating weekends and awarding the mother reasonable visitation, in state, with notice to the father as to when the mother would be in the state.

Thereafter, the mother filed an answer, a petition to have the father found in contempt, a motion to set aside the June 25, 1998, ex parte order, and a counterclaim.

After a hearing in February 1999, the trial court issued an order, finding that a change in the custody of the child would materially promote the best interests of the child and that any negative impact would be outweighed by the benefits of a change in custody. The trial court awarded the mother visitation rights and ordered her to pay $134 per month in child support, to be credited against the father’s child-support arrearage of $5,176.

The mother filed a motion to alter, amend, or vacate the order, which was denied. The mother appeals, contending that the father failed to meet his burden under Ex parte McLendon, 455 So.2d 863 (Ala.1984). We agree.

Under the McLendon standard, the father “must show not only that [he] is fit, but also that the change of custody ‘materially promotes’ the child’s best interest and welfare.” Ex parte McLendon, 455 So.2d at 866. The father must also “show that the child’s interests are promoted by the change, i.e., that [he] produce evidence to overcome the ‘inherently disruptive effect caused by uprooting the child.’ ” Ex parte McLendon, 455 So.2d at 866.

The record indicates the following: The father has remarried, his present wife has custody of her four-year-old son, and they have a newborn. The father and his family reside in a three-bedroom mobile home. The father had paid no child support since August 1996, and had no contact with the minor child involved in this present case between August 1996 and June 1998, when he obtained the ex parte order. The father admitted that he had no personal knowledge of most of the statements he made in the affidavit he used to obtain [537]*537the ex parte order — that he had relied upon what the maternal grandmother told him. At the hearing, the father testified:

“Q. So the bottom line is, all this really came about from [the maternal grandmother], didn’t it?
“A. Yes, sir.
“Q. [The maternal grandmother] came [to you] because she needed you to stop the child from being moved to Texas?
“A. Yes, sir.
“Q. That is the whole essence of this—
“A. And I saw my chance to take back what was rightfully mine which was a relationship with my own son.
“Q. But for a period of a year and a half or two years, it didn’t bother you, did it?
“A. Yes, sir, it did.
“Q. You weren’t around any of those times or supporting him to learn how to ride a bicycle, were you?
“A. I couldn’t find him.
“Q. You couldn’t find him?
“A. No, sir.
“Q. Where did y’all live in relationship to each other for the year and a half that you didn’t see him?
“A. For the [last] three or four months, they lived about a stone’s throw away from my house.
“Q. You could actually see the house?
“A. Yes, sir, I could.
“Q. Could you even see your son walking around out in the yard out there then?
“A. Yes, sir.
“Q. Did you ever go down there and talk to him?
“A. No.
[[Image here]]
“Q. So really your love for this child just started back about last summer when your former wife moved to Texas; is that what we’re saying?
“A. Yes, sir.
“Q. But all those times she was there changing the diapers and trying to scrape up enough money to buy food and raise this child, you really — you weren’t contributing during that period of time, were you?
“A. No, sir.
“Q. Well, then go ahead and explain to me and the court why this is an unfit mother.
“A.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Vail v. Vail
532 So. 2d 639 (Court of Civil Appeals of Alabama, 1988)
Ex Parte McLendon
455 So. 2d 863 (Supreme Court of Alabama, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
753 So. 2d 535, 1999 Ala. Civ. App. LEXIS 843, 1999 WL 1046458, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cox-v-ratcliff-alacivapp-1999.