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10/28/94 DAVID MATTHEW HARNISH v. KELLY HARNISH

October 28, 1994

DAVID MATTHEW HARNISH
v.
KELLY HARNISH



Appeal from Mobile Circuit Court. (DR-92-500642.01). Cain J. Kennedy, TRIAL JUDGE. This Opinion Substituted by the Court for Withdrawn Opinion of June 10 1994, Previously .

Released for Publication February 2, 1995.

Robertson, Presiding Judge. Thigpen and Yates, JJ., concur.

The opinion of the court was delivered by: Robertson

ROBERTSON, Presiding Judge

On our ex mero motu reconsideration of this case, the original opinion is withdrawn and the following substituted therefor:

David Matthew Harnish and Kelly Harnish were divorced by a judgment of the Mobile County Circuit Court entered on May 29, 1992. Pursuant to the divorce judgment, the mother was awarded custody of the parties' minor child. The father was granted reasonable visitation, including visits on alternate weekends from 6:00 p.m. on Friday to 6:00 p.m. on Sunday, from December 25 at 3:00 p.m. until January 1 at 3:00 p.m., and for one month during the summer.

On May 6, 1993, the father filed a motion in the trial court, requesting that he be awarded custody of the minor child. On May 25, 1993, the mother filed an answer, denying that a change of custody would be in the child's best interest.

On August 18, 1993, the trial court held a hearing on the motion. At the close of the father's case, the mother orally moved for a dismissal of the case. See Rule 41(b), A. R. Civ. P. She argued that the father had failed to prove a prima facie case. The trial court took the motion under submission and recessed the hearing. On August 24, 1993, without hearing any further evidence from either party, the trial court granted the mother's Rule 41(b) motion.

The father filed a motion pursuant to Rule 59(e), Ala. R. Civ. P., citing 25 reasons presented at the August 18 hearing for awarding him custody of the minor child. On September 28, 1993, the father filed a rule nisi petition requesting the trial court to hold the mother in contempt for denying the father visitation with the child on two occasions. The trial court ultimately denied both the father's rule nisi petition and his Rule 59(e) motion.

The father appeals, contending that he met the standard for modifying custody of the minor child as set forth in Ex parte McLendon, 455 So. 2d 863 (Ala. 1984), and that the trial court abused its discretion by denying the father's petition to hold the mother in contempt of court.

We first address whether the father met the standard for modifying custody of the minor child as set forth in McLendon, supra. The parent seeking a change of custody has the heavy burden of showing that the change in custody would materially promote the child's best interests and welfare. Id. Furthermore, "the positive good brought about by the modification must more than offset the inherently disruptive effect caused by uprooting the child." McLendon, 455 So. 2d at 865.

The father testified that in January 1993 the mother telephoned and asked him to meet her in the emergency room at Springhill Memorial Hospital because the minor child, who was then five years old, had an earache. The father testified that when he arrived at the hospital, he found that there was pus in the child's ears and the doctor informed him that the child had a severe ear infection. The father testified that the doctor prescribed an antibiotic, but that the mother failed to give the child all of the antibiotic and that she had failed to take the child for a recheck as the doctor had ordered. The father further testified that he was forced to take the child to a doctor to receive treatment for a rash on the child's genitals. He stated that the doctor prescribed medication for the condition and told the father that the rash had arisen because the child had not been properly bathed. The father testified that in February 1993 the mother had gotten upset with him about the child's calling the father's fiancee "mama," and that the mother had picked up a shoe and struck him with it repeatedly in the presence of the child. The father stated that on the same day, also in the presence of the child, the mother had confronted his fiancee and threatened her, "telling her that she was going to beat her up." The father testified that the mother's conduct had greatly upset the child.

The father testified that during the previous summer the mother had removed the child from the daycare program at the child's school, for which he pays $250 per month, and had placed the child with an unlicensed daycare provider. The father testified that the mother often sends the child to babysitters, particularly to the child's maternal grandmother. The father testified that the grandmother's present husband had molested the mother and her sister when they were children.

The father testified that he was concerned about the mother bringing men into the house at night. He testified that, on several occasions, he had seen automobiles parked at the mother's house from 11:30 p.m. until 3:00 a.m., and that on those occasions the lights in the house were out. He stated that, over a ...


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