119 So. 3d 418
Ala. Civ. App.2012Background
- The December 2007 judgment awarded the mother sole custody, standard visitation for the father with a phase-in, and child support of $548 monthly; health insurance was not ordered but noncovered medical expenses were shared, and custody exchanges were to occur through the grandmothers at Heflin Police Department.
- On July 26, 2010, the mother filed to modify custody and sought expanded visitation, travel and medical-notice rights, right of first refusal, elimination of grandmother intermediaries, and other related protections.
- The father counterclaimed seeking sole or 50/50 custody, health-insurance responsibility, and modification of child support; he also sought enforcement of surname changes.
- The ore tenus hearing occurred January 30 and February 2, 2012; on February 7, 2012, the court awarded joint legal and joint physical custody and imposed extensive communication-promoting provisions, while keeping child support unchanged and holding the mother in contempt for surname noncompliance.
- On March 5, 2012, the trial court amended to grant the father custody on Father’s Day and removed intermediary custody arrangements; the mother appealed and the father cross-appealed.
- The appellate court affirmed custody modification and rejected the father’s challenge to child-support consisting of health-insurance costs, finding the health-insurance cost not reasonable under Rule 32.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether McLendon burden was met for custody modification | Mother argues no material change in circumstances warranted modification. | Mother contends evidence shows inability to communicate and other factors supporting modification. | Affirmed; material change supported by evidence; McLendon burden satisfied. |
| Whether health insurance costs should alter child support | Father argues health-insurance cost should be included and support offset recalculated. | Mother argues cost not reasonable; trial court could deny modification without a hearing. | Affirmed; health-insurance cost not included as reasonable; no merit for modification. |
Key Cases Cited
- Ex parte McLendon, 455 So.2d 863 (Ala.1984) (establishes McLendon custody-modification burden)
- Dean v. Dean, 998 So.2d 1060 (Ala.Civ.App.2008) (defines McLendon three-part test)
- Cochran v. Cochran, 5 So.3d 1220 (Ala.Civ.App.2008) (visitation disputes alone do not modify custody)
- Sankey v. Sankey, 961 So.2d 896 (Ala.Civ.App.2007) (courts consider interference with noncustodial parent’s relationship)
- Adams v. Adams, 21 So.3d 1247 (Ala.Civ.App.2009) (custody modification supported by harm to parent-child relationship)
- Parker v. Parker, 87 So.3d 581 (Ala.Civ.App.2012) (costs and modification of health-insurance considerations)
- Ex parte Bryowsky, 676 So.2d 1322 (Ala.1996) (appeals review standard for ore tenus custody determinations)
- Ex parte Showers, 812 So.2d 277 (Ala.2001) (appellate treatment of evidence and standards in review)