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10/07/94 DEANA SHARON DOTSON COHN v. JEFFREY LEE

October 7, 1994

DEANA SHARON DOTSON COHN
v.
JEFFREY LEE COHN



Appeal from Etowah Circuit Court. (DR-90-046.01). Donald W. Stewart, TRIAL JUDGE.

Rehearing Overruled December 2, 1994, . Certiorari Denied March 3, 1995. Released for Publication July 5, 1995.

Thigpen, Judge. Robertson, P.j., and Yates, J., concur.

The opinion of the court was delivered by: Thigpen

THIGPEN, Judge

This case involves post-divorce proceedings.

The parties divorced in 1990, and the divorce judgment awarded the parties joint custody of their three minor children, with the mother having primary physical custody. Incorporated in the judgment was an agreement of the parties that the children would reside within 75 miles of Gadsden, apparently the area most familiar to the children as their family home. The judgment also ordered the father to pay child support. In May 1993, the father filed a petition to modify that judgment, seeking exclusive custody of the children. He alleged, inter alia, that the mother's plan to move to Birmingham was a material change in circumstances, and that it would not be in the children's best interests to be removed from Etowah County, and that, therefore, he should have primary physical custody. The mother filed an answer denying the father's allegations, and she filed a counterpetition, seeking, inter alia, exclusive custody, an arrearage with interest, an order finding the father in contempt for failure to comply with the previous support order, and an order specifically addressing visitation.

Following ore tenus proceedings, the trial court entered an order that, inter alia, denied the father's petition for a custody change, enjoined the mother from removing the children from Etowah County, awarded the mother an arrearage, refused to find the father in contempt, and addressed visitation by providing a detailed schedule. The mother appeals.

The mother argues that the trial court abused its discretion by (1) restricting her from removing the children from Etowah County; (2) not eliminating mid-week, overnight visitation with the father; (3) not finding the father in contempt and failing to award her attorney fees; and (4) not ordering the father to pay interest on the arrearage.

The mother first argues that the trial court abused its discretion when it restricted her, as primary custodian of the children, from removing the children from Etowah County. She argues that this is a modification of the original judgment which was not requested, that no evidence supports the change, and that it unreasonably restrained her custodial rights and her freedom to travel and/or relocate.

In addition to requesting custody, the father generally requested further appropriate relief, and was clear in his requests in his pleadings and at the hearing that his primary goal was to keep the children in Etowah County, which he believed would be in the best interests of the children. The issue regarding the children's residential restriction was expressly tried before the trial court by the parties. Rule 15(b), A.R.Civ.P.

Restrictions on the movement of children may be upheld when the territorial restriction promotes or protects the best interests of the children involved. McDaniel v. McDaniel, 621 So. 2d 1328 (Ala. Civ. App. 1993). The trial court's position regarding the children, i.e., parens patriae, affords it broad discretionary authority. McDaniel, (supra) . "There is no wider area for the exercise of judicial discretion than that of providing and protecting the best interests of the children." McDaniel at 1330. Etowah County is the only home these children have ever known. In that area, they have supportive, extended family, who actively participate in the children's lives. There was evidence presented that relocating the children outside Etowah County at this time could unnecessarily place limitations on their contact with members of their extended family and intensify the impact of the parents' divorce on the children. There was also evidence presented regarding the consequences of a relocation on the children's educational, cultural, and social needs. The children's needs, including the special needs of one child, are presently being adequately satisfied by the custodial parent and others, including the noncustodial parent, the extended family, and the educational system, all located in Etowah County. The mother testified that a support system could be established in her new location to adequately address the children's needs; however, the trial court's Conclusion that removing the children from their current surroundings and environment at this time was not in their best interests is supported by ample evidence. We note that there is no prohibition against removal of the restriction in the future as the children's circumstances and needs change.

The mother's argument that the residence restriction on the children places an unreasonable or unconstitutional restriction on her right to obtain employment in Birmingham and to relocate there is unpersuasive. The territorial restriction applies to the children's residence, not to the mother's residence. The mother is free to obtain employment in Birmingham, or elsewhere. The order restrains the mother from removing the children's residence from Etowah County. The mother has failed to disclose error in regard to the trial court's territorial restriction.

Next, the mother argues that the trial court erred in not eliminating overnight, mid-week visitation with the father. She argues that the mid-week visitation was disruptive to stability and created discipline problems.

Visitation, like custody, is a matter that rests soundly within the broad discretion of the trial court, and its determination regarding visitation must be affirmed absent a finding that the judgment is not supported by any credible evidence, and that the judgment, therefore, is plainly and palpably wrong. Andrews v. Andrews, 520 So. 2d 512 (Ala. Civ. App. 1987). The ore tenus rule affords the judgment in the instant case a presumption of correctness on appeal. Andrews, (supra) . Although visitation is a case-by-case determination, the trial court is guided by what is in the children's best interests. E.W. v. Montgomery Department of Human Resources, 602 So. 2d 428 (Ala. Civ. App. 1992). The mid-week, overnight visitation with the father was originally part of the parties' agreement regarding visitation, which was incorporated into the divorce judgment. That arrangement, albeit somewhat unique, protects and enhances the children's best interests by promoting and preserving the ...


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