Hoplamazian v. Hoplamazian

740 So. 2d 1100, 1999 WL 195802
CourtCourt of Civil Appeals of Alabama
DecidedApril 9, 1999
Docket2970791
StatusPublished
Cited by11 cases

This text of 740 So. 2d 1100 (Hoplamazian v. Hoplamazian) 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
Hoplamazian v. Hoplamazian, 740 So. 2d 1100, 1999 WL 195802 (Ala. Ct. App. 1999).

Opinion

740 So.2d 1100 (1999)

Richard HOPLAMAZIAN
v.
Judith B. HOPLAMAZIAN.

2970791.

Court of Civil Appeals of Alabama.

April 9, 1999.
Rehearing Denied May 28, 1999.
Certiorari Denied August 27, 1999.

*1101 Fulton S. Hamilton of Hamilton & Gardner, Huntsville, for appellant.

Dinah P. Rhodes of Lammons, Bell & Rhodes, Huntsville, for appellee.

Alabama Supreme Court 1981488.

PER CURIAM.

Richard Hoplamazian and his wife Judith B. Hoplamazian were divorced in 1995. They were given joint custody of their six-month-old son, with the mother having primary physical custody. The father was ordered to pay $546 per month in child support. In 1997, the father filed a petition to modify, seeking full custody. The mother counterclaimed for an increase in child support, reduced visitation by the father, and an attorney fee. Following an ore tenus proceeding, the trial court denied the relief requested by the father and granted, in part, the relief requested by the mother. The court increased the father's child-support obligation to $705.95 per month and awarded the mother an attorney fee of $11,927.51. The father appeals.

*1102 I.

The father contends that the trial court erred by applying the standard of Ex parte McLendon, 455 So.2d 863 (Ala.1984), rather than the "best interest" standard, to the modification proceeding. We hold that the circuit court applied the correct standard of proof.

"Where the parties agree to joint legal custody and shared physical custody of the children without a judicial determination preferring either parent, `custody [is] appropriately determined by the trial court according to what [is] in the `best interest' of the children.' Ex parte Couch, 521 So.2d 987, 989 (Ala.1988). However, where the parents have joint legal custody, but a previous judicial determination grants primary custody to one parent and secondary custody to the other, `the trial court [is] correct in applying the McLendon standard and requiring the [parent] to show that a change in custody would materially promote the welfare and best interests of the child, offsetting the disruptive effect of uprooting the child.' Blackmon v. Scott, 622 So.2d 393, 394 (Ala.Civ.App. 1993)."

Scholl v. Parsons, 655 So.2d 1060, 1062 (Ala.Civ.App.1995). See also Ex parte Johnson, 673 So.2d 410 (Ala.1994) (holding that "[i]f one parent has previously been granted primary physical custody," then McLendon applies); Berrey v. Berrey, 622 So.2d 1316 (Ala.Civ.App.1993) (holding that when the father and mother shared joint custody, but the child's "primary residence" was to be with the mother, McLendon applied); Taylor v. Taylor, 563 So.2d 1049, 1051 (Ala.Civ.App.1990) (holding that when the mother was given "primary physical custody," McLendon applied); Jenkins v. Jenkins, 541 So.2d 19 (Ala.Civ. App.1989) (holding that when the parties had joint custody but the mother provided the "primary residence" for the children, McLendon applied).

II.

The father argues that the trial court erred by failing to order an independent custody evaluation by a neutral mental-health professional. We disagree.

The trial court heard testimony from four licensed psychologists—two for the father (Dr. Roger Rinn and Dr. Frankie L. Preston), and two for the mother (Dr. Joan Kerr and Dr. Katherine Allen); two licensed professional counselors (Roger Hunter and James F. Pierce, both for the father); and two pediatricians (Dr. Judy Isenberg for the father, and Dr. N. Rao Thotakura for the mother). In addition, the trial judge was the same judge who had conducted the parties' divorce proceedings; during those proceedings the parties had submitted to psychological evaluations performed by Dr. Roger Rinn. At trial, Dr. Rinn repeated the results of his earlier evaluations of the parties and gave his opinion of their fitness to parent.

The trial court could reasonably conclude that additional court-ordered evaluations would have been superfluous and dilatory. The father filed his request for an independent evaluation less than 30 days before trial, after the case had been pending for over 9 months. "Whether to grant a request for psychological evaluations is a matter which rests within the discretion of the trial court. Perry v. Perry, 460 So.2d 1324 (Ala.Civ.App.1984)." Crosslin v. Crosslin, 494 So.2d 431, 433 (Ala.Civ.App.1986). We find no abuse of discretion.

III.

The father claims that the trial court abused its discretion by continuing primary physical custody of the child with the mother. The father's request for a custody modification was based on his theory that the mother babied and overprotected the son, who was, at the time of trial, slightly more than three and one-half years old.

*1103 To support his theory, the father presented evidence indicating that when the son was with the mother, he was not able to use the toilet, occasionally slept in the mother's bed and was breast-fed, and suffered from a gastrointestinal disorder. The father also presented evidence tending to show that the boy's speech was developmentally delayed. The father testified that when the son was with him, the boy was able to use the toilet, showed no interest in nursing, and suffered from no stomach ailments. The father offered evidence from mental-health experts indicating that it was abnormal, and perhaps developmentally detrimental, for a child older than three years to be breast-fed and not to be toilet trained.

The mother presented evidence tending to show that the child's tardiness in weaning and toilet training, as well as his sleep disorder and nightmares, could be traced, in part, to his conflicts about visitation with the father. The mother explained that usually the child slept in his own bed but that, when the child had episodes of night waking or nightmares (episodes which, she testified, often occurred after the child returned from visitation with the father), she would put him in bed with her and nurse him to comfort him. Pediatric and mental-health experts called by the mother gave their opinions that the mother's nursing the child on those occasions was not developmentally detrimental. Furthermore, the mother's experts gave their opinions that she was an excellent parent and that removing the child from her primary custody would have a negative effect on the child.

When a trial court makes a custody determination following an ore tenus proceeding, its judgment based on the evidence presented in that proceeding is presumed correct and will not be reversed on appeal unless it is so unsupported by the evidence as to be plainly and palpably wrong. See Glover v. Glover, 678 So.2d 174, 178 (Ala.Civ.App.1996). A parent seeking a modification of custody must show that he or she is fit and that the change of custody would materially promote the child's best interests and welfare. Ex parte McLendon, 455 So.2d 863, 865-66 (Ala.1984).

In order to justify a modification of custody, "[t]he evidence must be so substantial as to disclose an obvious and overwhelming necessity for a change. This requires a showing that the positive good brought about by the change of custody will more than offset the inherently disruptive effect caused by uprooting the child." Klapal v. Brannon, 610 So.2d 1167, 1169 (Ala.Civ.App.1992) (citations omitted).

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Bluebook (online)
740 So. 2d 1100, 1999 WL 195802, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hoplamazian-v-hoplamazian-alacivapp-1999.