Miller v. Murphy

Court of Civil Appeals of Alabama

Miller v. Murphy

555 So. 2d 1078, 1989 Ala. Civ. App. LEXIS 277, 1989 WL 97398

CourtCourt of Civil Appeals of Alabama

DecidedAugust 23, 1989

DocketCiv. 7030

StatusPublished

Cited by2 cases

This text of 555 So. 2d 1078 (Miller v. Murphy) 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

Miller v. Murphy, 555 So. 2d 1078, 1989 Ala. Civ. App. LEXIS 277, 1989 WL 97398 (Ala. Ct. App. 1989).

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Opinion

RUSSELL, Judge.

This is a child custody modification case.

The parents were divorced in 1980, and custody of the two minor children was awarded to the father by agreement of both parties. The mother sought a modification of custody, and following ore tenus proceedings, the trial court denied her petition.

The mother appeals. We affirm.

It is well settled that a trial judge who hears evidence presented ore tenus is in the best position to ascertain whether there has been a change in circumstances requiring a modification of custody, and he will not be reversed absent a showing that such a change is plainly and palpably wrong. Julian v. Julian, 402 So.2d 1025 (Ala.Civ.App.1981). Furthermore, the party seeking a change of custody must, in addition to demonstrating that she is fit, also demonstrate that such a change would “materially promote” the child’s best interests and welfare. Ex parte McLendon, 455 So.2d 863 (Ala.1984).

It is not enough for the mother to show that her circumstances have improved. McLendon, 455 So.2d at 866. Rather, she bears the heavy burden of showing that the “positive good brought about by the modification [would] more than offset the inherently disruptive effect caused by uprooting the children].” Wood v. Wood, 333 So.2d 826, 828 (Ala.Civ.App.1976). Additionally, we note that while an expressed preference of a child to live with a particular parent is a factor to be considered by the trial judge, such wishes are not determinative. Sanders v. Sanders, 435 So.2d 123 (Ala.Civ.App.1983).

We agree with the trial court that the mother has failed to meet the heavy burden established by McLendon and that she was, therefore, not entitled to custody. While the record reveals that a modification of custody might have little disruptive effect on the children, we find no evidence to support a conclusion that such a change would “materially promote” the children’s welfare. Testimony that the mother has purchased a larger home and that she has a [1079]*1079greater degree of formal education than does the father is not sufficient to warrant such a change.

The father’s request for attorney’s fees is granted in the amount of $400.

This case is due to be affirmed.

AFFIRMED.

INGRAM, P.J., and ROBERTSON, J., concur.

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RUSSELL, Judge.

This is a child custody modification case.

The parents were divorced in 1980, and custody of the two minor children was awarded to the father by agreement of both parties. The mother sought a modification of custody, and following ore tenus proceedings, the trial court denied her petition.

The mother appeals. We affirm.

It is well settled that a trial judge who hears evidence presented ore tenus is in the best position to ascertain whether there has been a change in circumstances requiring a modification of custody, and he will not be reversed absent a showing that such a change is plainly and palpably wrong. Julian v. Julian, 402 So.2d 1025 (Ala.Civ.App.1981). Furthermore, the party seeking a change of custody must, in addition to demonstrating that she is fit, also demonstrate that such a change would “materially promote” the child’s best interests and welfare. Ex parte McLendon, 455 So.2d 863 (Ala.1984).

It is not enough for the mother to show that her circumstances have improved. McLendon, 455 So.2d at 866. Rather, she bears the heavy burden of showing that the “positive good brought about by the modification [would] more than offset the inherently disruptive effect caused by uprooting the children].” Wood v. Wood, 333 So.2d 826, 828 (Ala.Civ.App.1976). Additionally, we note that while an expressed preference of a child to live with a particular parent is a factor to be considered by the trial judge, such wishes are not determinative. Sanders v. Sanders, 435 So.2d 123 (Ala.Civ.App.1983).

We agree with the trial court that the mother has failed to meet the heavy burden established by McLendon and that she was, therefore, not entitled to custody. While the record reveals that a modification of custody might have little disruptive effect on the children, we find no evidence to support a conclusion that such a change would “materially promote” the children’s welfare. Testimony that the mother has purchased a larger home and that she has a [1079]*1079greater degree of formal education than does the father is not sufficient to warrant such a change.

The father’s request for attorney’s fees is granted in the amount of $400.

This case is due to be affirmed.

AFFIRMED.

INGRAM, P.J., and ROBERTSON, J., concur.

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555 So. 2d 1078, 1989 Ala. Civ. App. LEXIS 277, 1989 WL 97398, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-murphy-alacivapp-1989.

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