Foster v. Foster

454 So. 2d 1028, 1984 Ala. Civ. App. LEXIS 1392
CourtCourt of Civil Appeals of Alabama
DecidedJuly 11, 1984
DocketCiv. 4167
StatusPublished
Cited by1 cases

This text of 454 So. 2d 1028 (Foster v. Foster) 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
Foster v. Foster, 454 So. 2d 1028, 1984 Ala. Civ. App. LEXIS 1392 (Ala. Ct. App. 1984).

Opinion

BRADLEY, Judge.

This is a child custody modification case.

The parties to this proceeding were divorced on September 22, 1977. Under the decree of divorce, custody of the parties’ two sons, Rod, age fourteen, and Beau, age eleven, was awarded to the husband.

Subsequently, the mother petitioned to modify the decree and to award her custody of the children. On September 16, 1980 the trial court entered an order finding that primary custody would remain with the father but that both parents would be allowed to “share responsibility and control of the children.” In addition, "the father was required to pay $3,600 per year as child support.

On January 15, 1981 the court modified the September 16 judgment by granting custody of the children to the mother one weekend each month and two months during the summer. The court also reduced the child support to be paid from $3,600 per year to $2,880 per year. This court affirmed the actions taken by the trial court. See Foster v. Foster, 409 So.2d 833 (Ala.Civ.App.1981).

On August 15, 1983 wife filed a petition to modify the prior judgments and to award her primary custody. She alleged that a material change in circumstances had occurred since the January 15 decree in that both children now preferred to be in her custody.

An ore tenus hearing was held on August 26, 1983. On September 14, 1983 the trial court entered a final judgment denying the mother’s request for primary custody, depriving mother of any custody rights, and terminating child support. The court did give the mother certain specified visitation rights. Mother appeals.

Mother’s first contention is that the trial court erred in denying her primary custody of the children. It has been said that:.

[1030]*1030“The party seeking modification of a child custody decree has the burden of showing a material change in circumstances which adversely affects the welfare of the child. Murphy v. Quinn, 402 So.2d 1033 (Ala.Civ.App.1981). A court which hears the evidence is in the best position to ascertain whether there has been such a change in circumstances as to require a custodial change and its decision will not be overturned except for an abuse of its discretion. Taylor v. Taylor, 387 So.2d 849 (Ala.Civ.App. 1980).”

Sanders v. Sanders, 435 So.2d 123 (Ala.Civ.App.1983).

The evidence shows that the children have been living with their father for the past six years in Decatur, Alabama. Both children attend school in Decatur, have made many friends there, and participate in athletics. Their only grandmother lives in Decatur and the younger child, Beau, visits with her often.

Father married Ann Foster in September 1982, and the family lives in a five bedroom home. Ann’s two children from a previous marriage, Steve, age sixteen, and Michael, age eight, also live there. There was evidence that Johnny, father’s twenty-one year old son from a prior marriage, has at times resided in the house.

Both children testified that father is a “good father.” The boys are well taken care of and are doing well in school. Beau is above average scholastically and is an exceptional student. They are active in sports and are good athletes. Father attends most, if not all, of the children’s football and baseball games, consults with their teachers on a regular basis, and keeps up with the boys’ school work. The family attends church regularly. In addition, the evidence shows that Ann Foster, husband’s present wife, loves Rod and Beau, treats them like her own, and shows no favoritism between them and her own children.

There was evidence that father is out of town on business trips at least once a week. Before he remarried, the children stayed with his mother. Now, Ann takes care of the children while he is gone. She does not work.

The evidence shows that mother married Alan Olson in January 1978. The couple lived in Decatur for a while but moved to Albany, Georgia in 1980. They live in a four bedroom house with a swimming pool. Mr. Olson, wife’s new husband, is employed by Chem-Treat, Inc. and earns approximately $65,000 a year. Mother does not work, but receives $240 a month child support. The couple have a son, Alan, Jr., who is four years old. Also living with them is Mr. Olson’s twelve year old daughter from a previous marriage. There was evidence that the family belongs to St. Paul’s Episcopal Church, but that they do not attend services in the summertime. Mr. Olson is active in the church youth program, the Boys’ Club, the YMCA, and the Dixie Baseball program. He participates in activities with the boys and they like him. Both children have made friends in Albany during the time they visit there, and would attend school not far from mother’s house. They have played sandlot baseball and have taken judo and art classes in Albany.

The father testified that when the boys return from visits with their mother, they are withdrawn and emotionally upset, and talk about living with their mother on a permanent basis. However, after a week or so they return to normal and cease their talk about moving.

The evidence shows that both Rod and Beau are mature young men who are capable of making sound decisions. Although they love both parents, each child has expressed a desire to live with his mother. There was evidence that they are happier and more comfortable living with her and that she is “easier to talk to.” The children testified that they are scared to talk to father about going to live with their mother. Rod, the older boy, refused to return to Decatur at the end of his summer visitation.

The mother argues in brief that the trial court erred by not abiding by the [1031]*1031wishes of the children to live with her. The wish of a child to be with its mother is not compelling on the court, but is a factor for the trial court to consider in deciding whether to change custody. Sanders v. Sanders, supra; Alford v. Alford, 368 So.2d 295 (Ala.Civ.App.1979). The ultimate decision of the trial court must be based on what is in the best interests of the child. Robertson v. Robertson, 415 So.2d 1085 (Ala.Civ.App.1982).

After a careful examination of the evidence in this case, we are not convinced that the trial court abused its discretion in refusing to change the custody of Rod and Beau from the father to the mother. Father has had custody for the past six years and based on the evidence is a fit and proper custodian. He is a good provider and regularly supervises the children’s emotional, physical, and educational development. The children are well adjusted and enjoy a stable home life. The court obviously considered the fact that this stability would be disrupted if the children were to move to Albany. They would have to change schools and leave their friends and family in Decatur. The trial court also stated that it was more impressed with Ann Foster than it was with Mr. Olson.

We conclude, therefore, that the mother has failed to show a sufficient change of circumstances to warrant the court in depriving the father of primary custody of his two sons. See Sherrod v. Sherrod, 361 So.2d 17 (Ala.Civ.App.1978).

By the same token, we are not convinced that the evidence supports depriving the mother of the custody rights previously awarded to her.

We acknowledge that a trial court has broad discretion in changing custody of a child and in awarding visitation rights to the noncustodial parent. Price v. Price,

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Related

Hayes v. Hayes
512 So. 2d 119 (Court of Civil Appeals of Alabama, 1987)

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Bluebook (online)
454 So. 2d 1028, 1984 Ala. Civ. App. LEXIS 1392, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foster-v-foster-alacivapp-1984.