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01/06/95 JOHNNIE SUE MARDIS v. JOHN WESLEY MARDIS

January 6, 1995

JOHNNIE SUE MARDIS
v.
JOHN WESLEY MARDIS



Appeal from Jefferson Circuit Court. (DR-88-501-383.06).

Wright, Retired Appellate Judge, Robertson, P.j., and Yates, J., concur. Thigpen, J., concurs in result only.

The opinion of the court was delivered by: Wright

WRIGHT, Retired Appellate Judge

The parties were divorced in 1988. Two daughters were born of the marriage. Incorporated into the final judgment of divorce was an agreement of the parties concerning child custody. The parties agreed that they would share joint custody of the children, rotating physical custody weekly.

In November 1992 the mother filed a petition, which, among other things, requested a modification of custody. She alleged that the joint custody arrangement was no longer feasible. She asked that she be awarded sole custody of the children. Following lengthy proceedings and numerous continuances, the trial court heard the matter in February 1994. The following month it entered an order awarding custody of the 16-year-old daughter to the mother and custody of the 10-year-old daughter to the father.

The mother appeals and asserts that the trial court erred in granting custody of the 10-year-old child to the father.

The record reflects that in 1992 the parties began to experience difficulty with the joint custody arrangement. The father's relationship with the older daughter had fully disintegrated by that year. After March 1992, the older daughter lived solely with her mother and has had little contact with her father since that time.

The younger daughter continued the weekly rotation between parents until September 1992. At that time she became angry with her mother and moved in with her father. The father enrolled her in a school within his district. He did so while the mother was out of the country. There has been previous litigation involving this issue. It, however, is not germane to the Disposition of this appeal.

The younger child lived with her father until November 1993, at which time she resumed weekly rotation between her parents. The mother testified that during the separation with her younger daughter, the father made it difficult for her to visit the child. The father denied that he interfered with the mother's visitation. The father is remarried and owns a gymnastics school. His second wife has three children from a previous marriage. He testified that the 10-year-old daughter has a good relationship with his new wife and her stepsisters.

The mother is a realtor. She has a steady friend of the opposite sex. She traded houses with this friend in order to keep the older daughter in her appropriate school district. The 16-year-old daughter testified that her mother's friend goes on vacations with them and occasionally sleeps at their house on the couch.

The record reflects that both daughters are exceptional students. The custodial difficulties have not caused the children any academic problems. The record reflects that the sisters have a good relationship.

The 16 year old testified that she did not want to live with her father because she does not get along with him or his new wife. The daughter and the father have made no efforts toward reconciliation.

The 10-year-old daughter testified in chambers, with only the trial court present. She stated that she wanted to live with her mother and visit her father. When the court asked her why, she responded:

"Well, It's just that I haven't seen her in a year, and I realize that I love her. And I like to be over there a bunch of times. And I still like my dad, but I just prefer to be over there because sometimes ...


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