Webber v. WebberWebber v. Webber
- Reporters:
- ,
- Before:
- Yates
On July 27, 2000, the father petitioned for a modification of custody, alleging that a material change in circumstances had occurred because, he said, the children were suffering emotional and physical injury
Following an ore tenus hearing in October 2001, the court entеred an order, that stated, in part,
“that the [father] shall have care, custody and control of the minor children . . . who shall reside with [the father], provided, that the [mother] shall have the right to visit with said minor childrеn on alternate weekends. . . . This visitation order is contingent upon the [mother] maintaining her residence within a 25-mile radius of Moody, Alabama. In the event that she should move her residence beyond the 25-mile radius her visitation with the minor children shall be suspended pending further order of this court.”
The mother moved to alter, amend, or vacate the judgment, or, in the alternative, for a new trial. The court set thе mother‘s postjudgment motion for a hearing and later denied the motion. The mother appealed.
The mother argues that the trial court abused its discretion in changing custody so as to award custody to the father. “The ore tenus rule is applicable to child-custody-modification proceedings, and the court‘s judgment based on its findings of fact will not be reversed absent a showing that the findings are plainly and palpably wrong.” E.M.C. v. K.C.Y., 735 So.2d 1225, 1228 (Ala.Civ.App. 1999). This court has stated:
“When a noncustodial parent seeks to modify the custody provision of a prior judgment, the evidentiary standards set forth in Ex parte McLendon, 455 So.2d 863 (Ala. 1984), must be applied. The petitioning parent must show that a change in custody will materially promote the child‘s best interests and welfare. Id. That parent must also show that the good brought about by the change in custody would more than offset the inherently disruptive effect caused by uprooting the child. Butts v. Startley, 600 So.2d 310 (Ala.Civ.App. 1992).”
Etheridge v. Etheridge, 712 So.2d 1089, 1091 (Ala.Civ.App. 1997).
The father testified at the October 2001 hearing that he had been employed at Authentic Cabinets for about five years, earning approximately $35,000 рer year, and that he provides health insurance for both children. He further stated that he lived in a three-bedroom, two-bathroom apartment. He stated that the children had been living with him most of the timе since December 2000, when the mother told him that she was not able to keep the
The father testified that the daughter suffers from a serious medical condition known as kidney reflux, which requires her to take medication every day to help prevent kidney failure and a subsequent transplant or surgery. He further stated thаt the daughter frequently suffers from severe urinary tract infections, and that she sees a kidney specialist at Children‘s Hospital in Birmingham. He testified that when the mother had custody of the children, she seldom sent the daughter‘s medication when the daughter visited with him. He went on to state that the daughter suffered kidney damage in 1999 as a result of the mother‘s failure to give the daughter her medication as prescribed.
The father testified that the mother had provided a very unstable living environment for the children. He stated that one of the reasons he wanted to obtain custody was because when he picked the children up for his summer 2000 visitation they were hungry, dirty, unkempt, and mentally underdeveloped. He further testified that the mother changed residences frequently and that she had allowed several of her friends to stay in hеr home while she had custody of the children.
The father testified that since the children have been in his custody they were doing very well; that they were enrolled in school; and that they were on a daily rоutine. The father presented several witnesses, including the paternal grandmother, two of his neighbors, and the children‘s teachers, who testified that he was a good and loving father and that the children had greatly improved since they had been in his custody.
The mother testified that she had been living in Birmingham with the maternal grandmother for a few months, working as a server at Logan‘s restaurant. According to the reсord, the mother had previously been employed as a server at a restaurant and bar in Chattanooga, Tennessee, often working until 3:00 a.m. Although she reported to DHR that she earned about $2,400 рer month, and that after paying her monthly expenses she had $1,000 left each month, the mother testified that she had suffered financially and had “[run] into hard times.” She further testified that “I didn‘t get to spend as much time with [the сhildren] as I wanted to, but it was always because I was working and trying to make ends meet. . . .” She testified that she wanted to move back to Chattanooga and get her old job back. However, she further testifiеd that if she was given custody of the children she would quit working nights and move into a three-bedroom mobile home in Trussville, Alabama. The mother denied that she had neglected the children in any way.
It appeаrs that the mother has exhibited questionable judgment on more than one occasion regarding the health and welfare of the children. We cannot say that the court abused its discretion in changing custody from the mother to the father. Therefore, we affirm that portion of the judgment.
The mother further argues that the trial court abused its discretion in ordering that her visitation rights be suspended in the event that shе fails to maintain her residence “within a 25-mile radius of Moody, Alabama.” It is well-settled law in Alabama that the determination of visitation rights for the noncustodial parent is a matter resting within the sound discretion of the trial court and that its judgment on that matter will not be reversed on appeal except for an abuse of that discretion. Ladewig v. Moxley, 589 So.2d 738 (Ala.Civ.App. 1991). That broad discretion
“Although we have not previously addressed this precise issue, we have held similar automatic modifications within the contexts of child support and custody to be in error. In Hovater v. Hovater, 577 So.2d 461 (Ala.Civ.App. 1990), this court struck down a custody reversionary clause that modified custody from one parent to the other in the event of a parent‘s move from a geographical area. We found the clausе to be of no effect because `it is premised on a mere speculation of what the best interest of the children may be at a future date.’ Id., at 463. In Morrison v. Kirkland, 567 So.2d 363 (Ala.Civ.App. 1990), the trial court had entered an order providing for the automatic escalation of child support payments. We reversed that provision, finding that `there is no evidentiary basis for the determination of future events and . . . there exists an adequаte procedure for modification when changes in circumstances do occur.’ Id., at 364.”
Hall v. Hall, 717 So.2d 416, 417 (Ala.Civ.App. 1998).
We conclude that the trial court was justified in placing a residential restriction upon the mother‘s visitation rights, based upon the overwhelming evidence of her haphazard lifestyle, her apparent inability at this point to adequately care for the children, and the daughter‘s medical condition. Hоwever, we further conclude that the trial court‘s automatic suspension of the mother‘s visitation rights should she move beyond the area designated in the trial court‘s order is based upon conjeсture as to what the best interests of the children might be in the future. Hall at 417. We note that the trial court could have included a provision in its order requiring the mother to give prior written notification to the father оf her intent to move from the restricted area or that the court could have ordered that the mother‘s visitation be supervised. Therefore, that portion of the court‘s judgment regarding an automatic suspension of the mother‘s right to visitation is reversed, and the case is remanded for the trial court to enter a judgment consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.
Crawley, Thompson, Pittman, and Murdock, JJ., concur.