M.W.W. v. B.W.

900 So. 2d 1230
CourtCourt of Civil Appeals of Alabama
DecidedSeptember 10, 2004
Docket2030032
StatusPublished
Cited by7 cases

This text of 900 So. 2d 1230 (M.W.W. v. B.W.) 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
M.W.W. v. B.W., 900 So. 2d 1230 (Ala. Ct. App. 2004).

Opinions

YATES, Presiding Judge.

M.W.W., the mother, appeals from a judgment modifying custody and ordering her to pay B.W., the father, child support.

The parties were divorced in 1997. At the time of the divorce, the parties were awarded joint custody of their two daughters, with the mother having primary physical custody and the father having visitation. On December 10, 2002, the father filed a petition for modification of custody and a petition for contempt, alleging that the mother was restricting and/or withholding his visitation rights. The father sought primary physical custody of the daughters. On December 12, 2002, the mother filed a petition for modification of custody and a petition for contempt, alleging that the father had failed to pay child support, had failed to reimburse her for certain medical • expenses related to the daughters, and had failed to maintain medical insurance on the daughters as ordered in the original divorce judgment. The mother sought sole custody of the daughters.

On January 8, 2003, the mother filed a petition for suspension of visitation, alleging that the father had sexually abused the older daughter. The mother also sought to, suspend visitation with the younger daughter until an investigation into the alleged abuse could be made. On February 3, 2003, the father filed a petition for immediate relief, seeking temporary custody of both daughters.

Following ore tenus proceedings on all the pending matters, the trial court entered an order, which stated the following findings of fact:

“1. The parties divorced in 1997 and physical custody of the minor children has been with the [mother] continuously since that time. The [father] exercises visitation.
“2. Both parties have since remarried.
“3. Circumstances surrounding the visitation between the [father] and the minor children, especially during the time leading up to his remarriage, strained the relationship between the minor children and the [father] somewhat.
“4. The [mother] has made substantial efforts to influence the minor children against the [father],
“5. During the month of January 2003, following the Court’s intervention to enforce the [father’s ■ visitation, the older [daughter] made sexual abuse allegations against the [father] and refused to visit accordingly.
“6. Per the parties' agreement, the parties and [the older daughter] submitted to a polygraph examination regarding the sexual abuse allegations. The [father] was found to be truthful in his denials and the [mother] and [the older daughter] were found to be untruthful in their allegations.
[1232]*1232“7. Despite the polygraph results, [the older daughter] continues to maintain her allegations against the [father].
“8. The [younger daughter], at times, has expressed that she also did not wish to visit with the [father]. This arises from influence from the [mother] and possibly from [the older daughter].
“9. [The younger daughter] and the [father] appear to continue to have a good relationship at present.
“10. The parties were evaluated by David R. Wilson, Ph.D, of Gadsden Psychological Services and all cooperated well with the evaluation. Further counseling with the parties and the [daughters] is necessary for the continued mental health and relationships of the parties.
“11. There is considerable lingering animosity between the parties and the parties have shown no ability to communicate or act together toward the best interest of their children. It is necessary for the parents to recognize the importance of each parent’s involvement in the lives of the children in order for healthy parent/child relationships to thrive.
“12. The parties are presently incapable of cooperating in any joint physical custodial arrangement.
“13. The present rift between the [father] and [the older daughter] are irremediable by immediate Court action.
“14. Both parties have substantially mishandled the familial relationships subsequent to the parties’ divorce in 1997.
“15. The [mother’s husband presently provides the insurance coverage for the [daughters] and the [father] reimburses him for the $164.54 per month premium.”

Pursuant to its findings, the trial court awarded the mother sole custody of the older daughter and awarded the father sole custody of the younger daughter. The court suspended the father’s visitation with the older daughter “until the Court finds it to be in the child’s best interest upon appropriate petition and hearing.” The mother was awarded visitation with the younger child. The parties were ordered to participate in individual and family counseling. The mother was ordered to pay the father $249.60 per month in child support. The father was ordered to reimburse the mother for $520.03 in unpaid medical bills for the daughters.

The mother argues that the trial court abused its discretion in awarding the father sole custody of the younger daughter. She also argues that the trial court incorrectly calculated the amount of child support she owed.

Pursuant to the original divorce judgment, the mother was awarded primary physical custody of the younger daughter, and, therefore, she was the custodial parent. See Hays v. Elmore, 585 So.2d 40 (Ala.Civ.App.1990). Based on the trial court’s previous award to the mother of primary physical custody, we are governed by the standard set out in Ex parte McLendon, 455 So.2d 863 (Ala.1984), in reviewing the trial court’s modification of custody. In accordance with McLendon, a parent seeking to modify custody must demonstrate that the change in custody would materially promote the child’s welfare and that the inherent disruption caused by the change in custody would be offset by the advantages of that custody change. “The evidence in support of a modification of custody must be substantial, and it must demonstrate an overwhelming necessity for a change.” Smith v. Smith, 865 So.2d 1207, 1210 (Ala.Civ.App.2003)(citing Klapal v. Brannon, 610 So.2d 1167 (Ala.Civ.App.1992)). [1233]*1233“The ore tenus rule is applicable to child-custody-modification proceedings, and the court’s judgment based on findings of fact will not be reversed absent a showing that the findings are plainly and palpably wrong.” P.A.T. v. K.T.G., 749 So.2d 454, 456 (Ala.Civ.App.1999)(citing Scholl v. Parsons, 655 So.2d 1060 (Ala.Civ.App.1995)).

The record reflects the following: Polygraph examinations, which both parties agreed would be admissible, indicated that the father was being truthful and that the mother and the older daughter were being deceptive regarding the older daughter’s claims that the father “tickled her vaginal area” on several occasions when she was between the ages of 6 and 12 years old. Dr. David Wilson interviewed the parents and the daughters. He testified that based on his observations there were reasons that the older daughter was making allegations against the father other than that she was actually sexually abused by the father. He stated that the timing and the context of the allegations led him to question to truth of the older daughter’s allegations.

Dr.

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Bluebook (online)
900 So. 2d 1230, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mww-v-bw-alacivapp-2004.